FREE TRADE AGREEMENT BETWEEN
THE EUROPEAN UNION AND THE SOCIALIST REPUBLIC OF VIET NAM

CHAPTER 14: TRANSPARENCY

ARTICLE 14.1

Objective and Scope

Recognising the impact that regulatory environment and procedures may have on trade and investment, each Party shall promote a predictable regulatory environment and efficient procedures for economic operators, especially small and medium-sized enterprises.

ARTICLE 14.2

Definitions

For the purposes of this Chapter:

(a) “interested person” means any natural or legal person that may be affected by a measure of general application; and

(b) “measure of general application” includes laws, regulations, judicial decisions, procedures and administrative rulings of general application that may have an impact on any matter covered by this Agreement.

ARTICLE 14.3

Publication

1. Each Party shall ensure that a measure of general application:

(a) is published promptly by means of an officially designated medium, including, where possible, electronic means, in such a manner as to enable governments and interested persons to become acquainted with it; and

(b) allows for a sufficient period of time between publication and entry into force of that measure, except where this is not possible for reasons of urgency.

2. Each Party shall:

(a) endeavour to publish at an early appropriate stage any proposal to adopt or amend any measure of general application, including, upon request, an explanation of the objective of, and rationale for, the proposal;

(b) provide reasonable opportunities for interested persons to comment on any proposal to adopt or amend any measure of general application, allowing, in particular, for sufficient time for such opportunities, except where this is not possible for reasons of urgency; and

(c) endeavour to take into consideration the comments received from interested persons with respect to any proposal to adopt or amend any measure of general application.

ARTICLE 14.4

Enquiries and Contact Points

1. Each Party shall, upon the entry into force of this Agreement, designate a contact point in order to ensure the effective implementation of this Agreement and to facilitate communication between the Parties on any matter covered by this Agreement.

2. Upon request of the other Party, the contact points shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.

3. Each Party shall, within its available resources, establish or maintain appropriate mechanisms, including those provided for in other Chapters of this Agreement, for responding to enquiries from any interested person regarding any measure of general application which is proposed or in force, and how it would be applied. Enquiries may be addressed through contact points designated under paragraph 1 or any other mechanism as appropriate, unless a specific mechanism is established in this Agreement.

4. Each Party shall provide for mechanisms available to interested persons seeking a solution to problems that have arisen from the application of a measure of general application under this Agreement.

5. The Parties recognise that responses provided pursuant to this Article may not be definitive or legally binding but for information purposes only.

6. Each Party shall provide, upon request, an explanation of the objective of, and rationale for measures of general application.

7. Upon request of a Party, the other Party shall promptly provide information and respond to questions pertaining to any measure or proposed measure of general application that the requesting Party considers might materially affect the operation of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.

ARTICLE 14.5

Administration of Measures of General Application

Each Party shall administer in a uniform, objective, impartial and reasonable manner all measures of general application. Each Party, in applying such measures to particular persons, goods or services of the other Party, shall

(a) endeavour to provide interested persons that are directly affected by proceedings, with reasonable notice, in accordance with its domestic procedures, when proceedings are initiated, including a description of the nature of the proceedings, a statement of the legal authority under which the proceedings are initiated and a general description of any issues in question;

(b) afford such interested persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceedings and the public interest permit; and

(c) ensure that its procedures are based on, and in accordance with, its domestic law.

ARTICLE 14.6

Review and Appeal

1. Each Party shall establish or maintain, in accordance with its domestic law, judicial, arbitral or administrative tribunals or procedures for the purposes of the prompt review and, where warranted, correction of administrative action relating to matters covered by this Agreement. Those tribunals and procedures shall be impartial and independent of the office or authority entrusted with administrative enforcement, and shall not have any substantial interest in the outcome of the matter.

2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceedings are provided with the right to:

(a) a reasonable opportunity to support or defend their respective positions; and

(b) a decision based on the evidence and submissions of record or, where required by its domestic law, the record compiled by the administrative authority.

3. Each Party shall ensure, subject to appeal or further review as provided for in its domestic law, that the decision referred to in subparagraph 2(b) is implemented by, and governs the practice of, the office or authority with respect to the administrative action at issue.

ARTICLE 14.7

Good Regulatory Practice and Administrative Behaviour

1. The Parties agree to cooperate in promoting regulatory quality and performance, including through exchange of information and best practices on their respective regulatory reform processes and regulatory impact assessments.

2. The Parties subscribe to the principles of good administrative behaviour and agree to cooperate in promoting such principles, including through the exchange of information and best practices.

ARTICLE 14.8

Specific Rules

This Chapter applies without prejudice to any specific rules established in other Chapters of this Agreement.

CHAPTER 15 DISPUTE SETTLEMENT

SECTION A OBJECTIVE AND SCOPE

ARTICLE 15.1

Objective

The objective of this Chapter is to establish an effective and efficient mechanism for avoiding and settling any dispute between the Parties regarding the interpretation and application of

this Agreement with a view to arriving at a mutually agreed solution.

ARTICLE 15.2

Scope

This Chapter applies with respect to the avoidance and settlement of any dispute between the Parties regarding the interpretation or application of the provisions of this Agreement, except as otherwise provided for in this Agreement.

SECTION B CONSULTATIONS AND MEDIATION

ARTICLE 15.3

Consultations

1. The Parties shall endeavour to resolve any dispute referred to in Article 15.2 (Scope) by entering into consultations in good faith with the aim of reaching a mutually agreed solution.

2. A Party shall seek consultations by means of a written request to the other Party, copied to the Trade Committee established pursuant to Article 17.1 (Trade Committee), identifying the measure at issue and the relevant provisions of this Agreement.

3. Consultations shall be held within 30 days of the date of receipt of the request referred to in paragraph 2 and take place, unless the Parties agree otherwise, in the territory of the

Party to which the request is made. The consultations shall be deemed concluded within 45 days of the date of receipt of the request, unless both Parties agree to continue consultations. Consultations, in particular all information disclosed and positions taken by the Parties, shall be confidential and without prejudice to the rights of either Party in any further proceedings.

4. Consultations on matters of urgency, including regarding matters involving perishable goods, seasonal goods or seasonal services, shall be held within 15 days of the date of receipt of the request referred to in paragraph 2. The consultations shall be deemed concluded within 20 days of the date of receipt of the request referred to in paragraph 2, unless both Parties agree to continue consultations.

5. The Party that sought consultations may have recourse to Article 15.5 (Initiation of the Arbitration Procedure) if:

(a) the other Party does not respond to the request for consultations within 15 days of the date of its receipt;

(b) the consultations are not held within the timeframes provided for in paragraphs 3 or 4;

(c) the Parties agree not to have consultations; or

(d) the consultations have been concluded without a mutually agreed solution.

6. During consultations each Party shall provide sufficient factual information for an examination of the manner in which the measure at issue could affect the operation and application of this Agreement.

ARTICLE 15.4

Mediation Mechanism

The Parties may at any time agree to enter into a mediation procedure pursuant to Annex 15-C (Mediation Mechanism) with respect to any measure adversely affecting trade or liberalisation of investment between the Parties.

SECTION C

DISPUTE SETTLEMENT PROCEDURES

SUB-SECTION 1

ARBITRATION PROCEDURE

ARTICLE 15.5

Initiation of the Arbitration Procedure

1. If the Parties fail to resolve the dispute by recourse to consultations as provided for in Article 15.3 (Consultations), the Party that sought consultations may request the establishment of an arbitration panel.

2. The request for the establishment of an arbitration panel shall be made in writing to the other Party, a copy of which shall be submitted to the Trade Committee. The complaining Party shall identify the measure at issue in its request, and explain how that measure is inconsistent with the provisions of this Agreement in such a manner as to clearly present the legal basis for the complaint.

ARTICLE 15.6

Terms of Reference of the Arbitration Panel

“To examine, in the light of the relevant provisions of this Agreement cited by the Parties, the matter referred to in the request for the establishment of an arbitration panel pursuant to Article 15.5 (Initiation of the Arbitration Procedure), to rule on the conformity of the measure in question with the provisions referred to in Article 15.2 (Scope), and to set out in its report findings of fact, the applicability of the relevant provisions and the basic rationale for any findings and recommendations, in accordance with Articles 15.10 (Interim Report) and 15.11 (Final Report)”.

ARTICLE 15.7

Establishment of the Arbitration Panel

1. An arbitration panel shall be composed of three arbitrators.

2. Within 10 days of the date of receipt by the Party complained against of the request for the establishment of an arbitration panel, the Parties shall consult in order to agree on the composition of the arbitration panel.

3. If the Parties do not agree on the composition of the arbitration panel within the time frame provided for in paragraph 2, each Party may appoint an arbitrator from the sub-list of that Party established under Article 15.23 (List of Arbitrators) within 10 days from the expiry of the time frame provided for in paragraph 2. If a Party fails to appoint an arbitrator from its sub-list the arbitrator shall, upon request of the other Party, be selected by lot by the chair of the Trade Committee, or the chair’s delegate, from the sub-list of that Party established under Article 15.23 (List of Arbitrators).

4. If the Parties do not agree on the chairperson of the arbitration panel within the time frame provided for in paragraph 2 the chair of the Trade Committee, or the chair’s delegate, shall select by lot, upon request of a Party, the chairperson of the arbitration panel from the sub-list of chairpersons established under Article 15.23 (List of Arbitrators).

5. The chair of the Trade Committee, or the chair’s delegate, shall select the arbitrators within five days of the request referred to in paragraph 3 or 4.

6. The date of establishment of the arbitration panel shall be the date on which the three selected arbitrators have notified the Parties of the acceptance of their appointment in accordance with Annex 15-A (Rules of Procedure).

7. If any of the lists provided for in Article 15.23 (List of Arbitrators) have not been established or do not contain sufficient names when a request is made pursuant to paragraph 3 or 4, the arbitrators shall be selected by lot from among the individuals who have been formally proposed by both Parties, or by a Party in the event that only one Party has made a proposal.

ARTICLE 15.8

Dispute Settlement Proceedings of the Arbitration Panel

1. The rules and procedures set out in this Article, Annexes 15-A (Rules of Procedure) and 15-B (Code of Conduct for Arbitrators and Mediators) shall govern the dispute settlement proceedings of an arbitration panel.

2. Unless the Parties agree otherwise, they shall meet the arbitration panel within 10 days of its establishment in order to determine all matters that the Parties or the arbitration panel deem appropriate, including the timetable of the proceedings and the remuneration and expenses of the arbitrators in accordance with Annex 15-A (Rules of Procedure). Arbitrators and representatives of the Parties may take part in this meeting via telephone or video conference.

3. The venue of the hearing shall be decided by mutual consent of the Parties. If the Parties do not agree on the venue of the hearing, it shall be held in Brussels if the complaining Party is Viet Nam and in Ha Noi if the complaining Party is the Union.

4. Any hearing shall be open to the public unless otherwise provided for in Annex 15-A (Rules of Procedure).

5. In accordance with Annex 15-A (Rules of Procedure), the Parties shall be given the opportunity to attend any of the presentations, statements, arguments or rebuttals in the proceedings. Any information or written submission submitted to the arbitration panel by a Party, including any comments on the descriptive part of the interim report, responses to questions by the arbitration panel and comments by a Party on those responses, shall be made available to the other Party.

6. Unless the Parties agree otherwise within three days of the date of establishment of the arbitration panel, the arbitration panel may receive, in accordance with Annex 15-A (Rules of Procedure), unsolicited written submissions (amicus curiae submissions) from natural or legal person established in the territory of a Party.

7. For its internal deliberations, the arbitration panel shall meet in closed session where only arbitrators take part. The arbitration panel may also permit its assistants to be present at its deliberations. The deliberations of the arbitration panel and the documents submitted to it shall be kept confidential.

ARTICLE 15.9

Preliminary Ruling on Urgency

If a Party so requests, the arbitration panel shall give a preliminary ruling within 10 days of its establishment on whether it deems the case to be urgent.

ARTICLE 15.10

Interim Report

1. The arbitration panel shall issue an interim report to the Parties setting out the findings of fact, the applicability of relevant provisions and the basic rationale for any findings and recommendations, no later than 90 days from the date of establishment of the arbitration panel. When it considers that this deadline cannot be met, the chairperson of the arbitration panel shall notify the Parties and the Trade Committee in writing, stating the reasons for the delay and the date on which the arbitration panel plans to issue its interim report. The arbitration panel shall, under no circumstances, issue the interim report later than 120 days after the date of establishment of the arbitration panel.

2. In cases of urgency, including those involving perishable goods or seasonal goods or services, the arbitration panel shall make every effort to issue its final report within 60 days of the date of its establishment. The arbitration panel shall, under no circumstances issue the final report later than 75 days from the date of establishment of the arbitration panel.

3. In cases of urgency, including those involving perishable goods or seasonal goods or services, the arbitration panel shall make every effort to issue its interim report within 45 days and, in any case, no later than 60 days after the date of establishment of the arbitration panel. A Party may submit a written request, including comments, to the arbitration panel to review precise aspects of the interim report, within seven days of the notification of the interim report.

4. After considering any written requests, including comments, by the Parties on the interim report, the arbitration panel may modify its report and make any further examination that it considers appropriate.

ARTICLE 15.11

Final Report

1. The arbitration panel shall issue its final report to the Parties and to the Trade Committee within 120 days of the date of establishment of the arbitration panel. When it considers that this deadline cannot be met, the chairperson of the arbitration panel shall notify the Parties and the Trade Committee in writing, stating the reasons for the delay and the date on which the arbitration panel plans to issue its final report. The arbitration panel shall, under no circumstances, issue the final report later than 150 days from the date of establishment of the arbitration panel.

2. In cases of urgency, including those involving perishable goods or seasonal goods or services, the arbitration panel shall make every effort to notify its final report within 60 days of the date of its establishment. The arbitration panel shall, under no circumstances issue the final report later than 75 days from the date of establishment of the arbitration panel.

3. The final report shall include a sufficient discussion of the arguments made at the interim review stage, and shall clearly address the comments of the Parties.

SUB-SECTION 2

COMPLIANCE

ARTICLE 15.12

Compliance with the Final Report

The Party complained against shall take any measure necessary to comply promptly and in good faith with the final report.

ARTICLE 15.13

Reasonable Period of Time for Compliance

1. If immediate compliance is not possible, the Parties shall endeavour to mutually agree on the period of time to comply with the final report. In such a case, the Party complained against shall, no later than 30 days after the receipt of the final report, notify the complaining Party and the Trade Committee of the time it will require for compliance hereinafter referred to as the “reasonable period of time”).

2. If there is disagreement between the Parties on the reasonable period of time to comply with the final report, the complaining Party shall, within 20 days of the receipt of the notification made in accordance with paragraph 1 by the Party complained against, request, in writing, the arbitration panel established pursuant to Article 15.7 (Establishment of the Arbitration Panel) (hereinafter referred to as the “original arbitration panel”) to determine the length of the reasonable period of time. That request shall be notified to the Party complained against, with a copy thereof sent to the Trade Committee.

3. The arbitration panel shall notify its ruling on the reasonable period of time to the Parties and to the Trade Committee within 20 days of the date of the submission of the request referred to in paragraph 2.

4. The Party complained against shall inform, in writing, the complaining Party of its progress to comply with the final report at least 30 days before the expiry of the reasonable period of time.

5. The Parties may agree to extend the reasonable period of time.

ARTICLE 15.14

Review of Measure Taken to Comply with the Final Report

1. The Party complained against shall notify the complaining Party and the Trade Committee before the end of the reasonable period of time of any measure that it has taken to comply with the final report.

2. If the Parties disagree on the existence or the consistency of any measure taken to comply with the provisions referred to in Article 15.2 (Scope) and notified under paragraph 1, the complaining Party may request, in writing, the original arbitration panel to rule on the matter. The request shall be notified to the Party complained against, with a copy thereof sent to the Trade Committee. The complaining Party shall identify in its request the specific measure at issue, and explain how such measure is inconsistent with the provisions referred to in Article 15.2 (Scope) in a manner sufficient to clearly present the legal basis for the complaint.

3. The arbitration panel shall notify its ruling to the Parties and to the Trade Committee within 45 days of the date of the submission of the request referred to in paragraph 2.

ARTICLE 15.15

Temporary Remedies in Case of Non-Compliance

1. If the Party complained against fails to notify the complaining Party and the Trade Committee of any measure taken to comply with the final report before the expiry of the reasonable period of time, or if the arbitration panel rules that no measure to comply with has been taken or that the measure notified under paragraph 1 of Article 15.14 (Review of Measure Taken to Comply with the Final Report) is inconsistent with that Party’s obligations under the provisions referred to in Article 15.2 (Scope), the Party complained against shall, if so requested by the complaining Party and after consultations with that Party, present an offer for compensation.

2. If the complaining Party decides not to request an offer for compensation or, in case such request is made, if no agreement on compensation is reached within 30 days of the end of the reasonable period of time or of the issuance of the arbitration panel ruling under

Article 15.14 (Review of Measure Taken to Comply with the Final Report) that no measure to comply with has been taken or that a measure taken is inconsistent with the provisions

referred to in Article 15.2 (Scope), the complaining Party shall be entitled, upon notification to the other Party and to the Trade Committee, to suspend obligations arising from any provision referred to in Article 15.2 (Scope) at a level equivalent to the nullification or impairment caused by the violation. The notification shall specify the level of suspension of obligations. The complaining Party may implement the suspension at any moment after the expiry of 10 days from the date of receipt of the notification by the Party complained against, unless the Party complained against has requested arbitration under paragraph 3 of this Article.

3. If the Party complained against considers that the level of suspension of obligations is not equivalent to the nullification or impairment caused by the violation, it may request, in writing, the original arbitration panel to rule on the matter. That request shall be notified to the complaining Party and copied to the Trade Committee before the expiry of the period of

10 days referred to in paragraph 2. The original arbitration panel shall notify its ruling on the level of the suspension of obligations to the Parties and to the Trade Committee within 30 days of the date of the submission of the request. Obligations shall not be suspended until the original arbitration panel has notified its ruling, and any suspension shall be consistent with that ruling.

4. The suspension of obligations and the compensation shall be temporary and shall not be applied after:

(a) the Parties have reached a mutually agreed solution pursuant to Article 15.19 (Mutually Agreed Solution);

(b) the Parties have agreed that the measure notified under paragraph 1 of Article 15.14 (Review of Measure Taken to Comply with the Final Report) brings the Party complained against into conformity with the provisions referred to in Article 15.2 (Scope); or

(c) any measure found to be inconsistent with the provisions referred to in Article 15.2 (Scope) has been withdrawn or amended so as to bring it into conformity with those provisions, as ruled under paragraph 3 of Article 15.14 (Review of Measure Taken to Comply with the Final Report).

ARTICLE 15.16

Review of Measure Taken to Comply
After the Adoption of Temporary Remedies for Non-Compliance

1. The Party complained against shall notify the complaining Party and the Trade Committee of any measure it has taken to comply with the report of the arbitration panel following the suspension of obligations or following the application of compensation, as the case may be. With the exception of cases referred to in paragraph 2, the complaining Party shall terminate the suspension of obligations within 30 days of the date of the receipt of the notification. In the event that compensation has been applied, and with the exception of cases referred to in paragraph 2, the Party complained against may terminate the application of such compensation within 30 days from its notification that it has complied with the report of the arbitration panel.

2. If the Parties do not agree on whether the notified measure brings the Party complained against into conformity with the provisions referred to in Article 15.2 (Scope), within 30 days of the date of receipt of the notification, the complaining Party shall request, in writing, the original arbitration panel to rule on the matter. That request shall be notified to the Party complained against, with a copy thereof sent to the Trade Committee.

3. The ruling of the arbitration panel shall be notified to the Parties and to the Trade Committee within 45 days of the date of the submission of the request. If the arbitration panel rules that the notified measure is in conformity with the provisions referred to in Article 15.2 (Scope), the suspension of obligations or compensation, as the case may be, shall be terminated. Where relevant, the level of suspension of obligations or of compensation shall be adapted in light of the ruling of the arbitration panel.

SUB-SECTION 3

COMMON PROVISIONS

ARTICLE 15.17

Replacement of Arbitrators

If during arbitration proceedings the original arbitration panel, or some of its members, are unable to participate, withdraw or need to be replaced because the member does not comply with the requirements of the Code of Conduct in Annex 15-B (Code of Conduct for Arbitrators and Mediators), the procedure set out in Article 15.7 (Establishment of the Arbitration Panel) applies. The time limit for the notification of the reports and rulings, as the case may be, shall be extended by 20 days.

ARTICLE 15.18

Suspension and Termination of Arbitration Proceedings

1. The arbitration panel shall, at the request of both Parties, suspend its work at any time for a period agreed by the Parties not exceeding 12 consecutive months. It shall resume its work before the end of that suspension period at the written request of both Parties. The Parties shall inform the Trade Committee, accordingly. The arbitration panel may also resume its work at the end of the suspension period at the written request of either Party. The requesting Party shall inform the Trade Committee and the other Party, accordingly. If a Party does not request the resumption of the arbitration panel’s work at the expiry of the suspension period, the authority of the arbitration panel shall lapse and the proceedings shall be terminated. In the event of a suspension of the work of the arbitration panel, the time-frames set out in the relevant provisions of this Chapter shall be extended by the same period of time for which the work was suspended. The suspension and termination of the arbitration panel’s work are without prejudice to the rights of either Party in other proceedings subject to Article 15.24 (Choice of Forum).

2. The Parties may agree to terminate the proceedings of the arbitration panel by jointly notifying such agreement to the chairperson of the arbitration panel and the Trade Committee at any time before the issuance of the final report of the arbitration panel.

ARTICLE 15.19

Mutually Agreed Solution

The Parties may reach a mutually agreed solution to a dispute under this Chapter at any time. They shall jointly notify the Trade Committee and the chairperson of the arbitration panel, where applicable, of any such solution. If the solution requires approval pursuant to the relevant domestic procedures of either Party, the notification shall refer to this requirement, and the dispute settlement procedure shall be suspended. If such approval is not required, or if the completion of any such domestic procedures is notified, the dispute settlement procedure shall be terminated.

ARTICLE 15.20

Information and Technical Advice

At the request of a Party, or upon its own initiative, the arbitration panel may request any information it deems appropriate for the proceedings of the arbitration panel from any source, including the Parties involved in the dispute. The arbitration panel has also the right to seek the opinion of experts, as it deems appropriate. The arbitration panel shall consult the Parties before choosing such experts. Any information obtained under this Article must be disclosed and submitted to the Parties for their comments within the time-frame set by the arbitration panel.

ARTICLE 15.21

Rules of Interpretation

The arbitration panel shall interpret the provisions referred to in Article 15.2 (Scope) in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969. The arbitration panel shall also take into account relevant interpretations in reports of panels and of the Appellate Body adopted by the WTO Dispute Settlement Body under Annex 2 of the WTO Agreement. The reports and rulings of the arbitration panel shall not add to or diminish the rights and obligations of the Parties provided for in this Agreement.

ARTICLE 15.22

Decisions and Rulings of the Arbitration Panel

1. The arbitration panel shall make every effort to take any decision by consensus. In the event that a decision cannot be reached by consensus, the matter at issue shall be decided by majority vote. Dissenting opinions of arbitrators shall in no case be disclosed.

2. The reports and rulings of the arbitration panel shall be accepted unconditionally by the Parties. They shall not create any rights or obligations with respect to natural or legal persons. The reports and rulings shall set out the findings of fact, the applicability of the relevant provisions referred to in Article 15.2 (Scope) and the basic rationale behind any findings and conclusions. The Trade Committee shall make the reports and rulings of the arbitration panel publicly available in their entirety within 10 days of their issuance, unless it decides not to do so in order to protect confidential information.

SECTION D GENERAL PROVISIONS

ARTICLE 15.23

List of Arbitrators

1. The Trade Committee shall, no later than six months after the date of entry into force of this Agreement, establish a list of at least 15 individuals who are willing and able to serve as arbitrators. The list shall be composed of three sub-lists:

(a) one sub-list for the Union;

(b) one sub-list for Viet Nam; and

(c) one sub-list of individuals who are not nationals of either Party and do not have permanent residence in either Party and who shall act as chairperson of the arbitration panel.

2 Each sub-list shall include at least five individuals. The Trade Committee shall ensure that the list is always maintained at this minimum number of individuals.

3. Arbitrators shall have demonstrated expertise and experience of law and international trade. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government, or be affiliated with the government of any of the Parties, and shall comply with the Code of Conduct in Annex 15-B (Code of Conduct for Arbitrators and Mediators).

4. The Trade Committee may establish an additional list of 10 individuals with demonstrated expertise and experience in specific sectors covered by this Agreement. Subject to the agreement of the Parties, such an additional list shall be used to compose the arbitration panel in accordance with the procedure set out in Article 15.7 (Establishment of the Arbitration Panel).

ARTICLE 15.24

Choice of Forum

1. Recourse to the dispute settlement procedure under this Chapter shall be without prejudice to any action in the WTO framework, including dispute settlement action, or under any other international agreement to which both Parties are party.

2. By way of derogation from paragraph 1, a Party shall not, for a particular measure, seek redress for the breach of a substantially equivalent obligation under this Agreement and under the WTO Agreement or under any other international agreement to which both Parties are party in the relevant fora. Once dispute settlement proceedings have been initiated, the Party shall not bring a claim seeking redress for the breach of the substantially equivalent obligation under the other agreement to the other forum, unless the forum selected first fails for procedural or jurisdictional reasons to make findings on the claim seeking redress to that obligation.

3. For the purposes of this Article:

(a) dispute settlement proceedings under the WTO Agreement are deemed to be initiated by a Party’s request for the establishment of a panel under Article 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes;

(b) dispute settlement proceedings under this Chapter are deemed to be initiated by a Party’s request for the establishment of an arbitration panel under paragraph 1 of Article 15.5 (Initiation of the Arbitration Procedure);

(c) dispute settlement proceedings under any other international agreement are deemed to be initiated in accordance with that agreement.

4. Nothing in this Agreement shall preclude a Party from implementing the suspension of obligations authorised by the WTO Dispute Settlement Body. The WTO Agreement shall not be invoked to preclude a Party from suspending obligations in accordance with this Chapter.

ARTICLE 15.25

Time Limits

1. All time limits laid down in this Chapter, including the limits for the arbitration panels to notify their reports and rulings, shall be counted in calendar days from the day following the act or fact to which they refer, unless otherwise specified.

2. Any time limit referred to in this Chapter may be modified by mutual agreement of the Parties to the dispute. The arbitration panel may at any time propose to the Parties to modify any time limit referred to in this Chapter, stating the reasons for the proposal.

ARTICLE 15.26

Review and Modification

The Trade Committee may decide to review and modify Annexes 15-A (Rules of Procedure),15-B (Code of Conduct for Arbitrators and Mediators) and 15-C (Mediation Mechanism).

CHAPTER 16: COOPERATION AND CAPACITY BUILDING

ARTICLE 16.1

Objectives and Scope

1. The Parties affirm the importance of cooperation and capacity building for the efficient implementation of this Agreement, which supports the continued expansion of and creates new opportunities for trade and investment between them.

2. The Parties commit to deepen cooperation in areas of mutual interest taking into consideration the different levels of development between the Union and Viet Nam. That cooperation shall foster sustainable development in all its dimensions, including sustainable growth and the reduction of poverty.

3. This Chapter applies to all provisions on cooperation of this Agreement.

ARTICLE 16.2

Areas and Means of Cooperation

1. The Parties acknowledge that cooperation shall be carried out within the existing legal and institutional framework and according to the rules and procedures governing the relations between the Parties.

2. To achieve the objectives referred to in Article 16.1 (Objectives and Scope), the Parties attach particular importance to cooperating in the following areas:

(a) regional cooperation and integration;

(b) trade facilitation;

(c) trade policy and regulations;

(d) trade-related aspects of agriculture, fishery and forestry;

(e) sustainable development, in particular in its environmental and labour dimensions;

(f) small and medium-sized enterprises;

(g) other areas identified under specific Chapters of this Agreement; and

(h) other areas of mutual interest related to this Agreement.

3. Cooperation between the Parties shall primarily be carried out by means of exchange of information, experience and best practices as well as by means of policy cooperation. Where appropriate, seminars, workshops, training, studies, technical assistance and capacity building may be considered.

4. The Parties acknowledge the potentially important role of the private sector in cooperation and shall support its involvement in order to contribute to maximising the Agreement’s benefit for economic growth and development.

ARTICLE 16.3

Animal Welfare

The Parties agree to cooperate on animal welfare as necessary, including technical assistance and capacity building for the development of animal welfare standards. For the purpose of this Article they shall consult the Committee on Sanitary and Phytosanitary Measures established pursuant to Article 17.2 (Specialised Committees).

ARTICLE 16.4

Institutional Mechanism

1. Cooperation issues shall be discussed in the relevant specialised committees established pursuant to Article 17.2 (Specialised Committees). In areas of cooperation outside the remit of the specialised committees, those issues shall be discussed within the Trade Committee.

2. Each Party shall designate a contact point within its administration to liaise with the other Party on matters related to the implementation of this Chapter.

CHAPTER 17: INSTITUTIONAL, GENERAL AND FINAL PROVISIONS

ARTICLE 17.1

Trade Committee

1. The Parties hereby establish a Trade Committee comprising representatives of the Parties.

2. The Trade Committee shall meet once a year, unless otherwise decided by the Trade Committee, or in urgent cases at the request of a Party. The meetings of the Trade Committee shall take place alternately in the Union and in Viet Nam, unless otherwise agreed by the Parties. The Trade Committee shall be co-chaired by the Minister of Industry and Trade of Viet Nam and the Member of the European Commission responsible for Trade, or their respective delegates. The Trade Committee shall agree on its meeting schedule and set its agenda.

3. The Trade Committee shall:

(a) ensure the proper operation of this Agreement;

(b) supervise and facilitate the implementation and application of this Agreement, and further its general aims;

(c) supervise and coordinate the work of all specialised committees, working groups and other bodies established under this Agreement, recommend to those bodies any necessary action, and evaluate and adopt decisions, where provided for in this Agreement, regarding any subject matter referred to it by those bodies;

(d) consider ways to further enhance trade and investment relations between the Parties;

(e) without prejudice to Chapter 15 (Dispute Settlement), seek to solve problems which might arise in areas covered by this Agreement, or resolve disputes that may arise regarding the interpretation or application of this Agreement; and

(f) consider any other matter of interest relating to areas covered by this Agreement.

4. The Trade Committee may, in accordance with the relevant provisions of this Agreement:

(a) decide to establish specialised committees, working groups or other bodies, to allocate responsibilities to them in order to assist it in the performance of its tasks, and to dissolve them; the Trade Committee shall determine the composition, remit and tasks of the specialised committees, working groups or other bodies it establishes;

(b) communicate on issues falling under the scope of this Agreement with all interested parties, including the private sector, social partners, and civil society organisations;

(c) consider and recommend to the Parties amendments to this Agreement or, in cases specifically provided for in this Agreement, amend, by decision, provisions of this Agreement;

(d) adopt interpretations of the provisions of this Agreement, which shall be binding on the Parties and all bodies set up under this Agreement, including arbitration panels referred to under Chapter 15 (Dispute Settlement);

(e) adopt decisions or make recommendations as envisaged by this Agreement;

(f) adopt its own rules of procedure; and

(g) take any other action in the exercise of its functions in accordance with this Agreement.

5. The Trade Committee shall inform the Joint Committee set up under the Partnership and Cooperation Agreement as part of the common institutional framework on its activities and those of its specialised committees, as relevant, at the regular meetings of the Joint Committee.

ARTICLE 17.2

Specialised Committees

1. The following specialised committees are hereby established under the auspices of the Trade Committee:

(a) the Committee on Trade in Goods;

(b) the Committee on Customs;

(c) the Committee on Sanitary and Phytosanitary Measures;

(d) the Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement; and

(e) the Committee on Trade and Sustainable Development.

2. The composition, remit and tasks of the specialised committees referred to in paragraph 1 are defined in the relevant chapters and protocols of this Agreement and can be modified, if necessary, by decision of the Trade Committee.

3. Unless otherwise provided for in this Agreement or agreed by the Parties, the specialised committees shall meet once a year. They shall also meet at the request of either Party or of the Trade Committee. They shall be co-chaired, at an appropriate level, by representatives of the Union and Viet Nam. The meetings shall take place alternately in the Union and Viet Nam, or by any other appropriate means of communication as agreed between the Parties. The specialised committees shall agree on their meeting schedule and set their agenda by mutual consent. Each specialised committee may decide its own rules of procedure in the absence of which the rules of procedure of the Trade Committee shall apply mutatis mutandis.

4. The specialised committees may submit proposals for decisions to be adopted by the Trade Committee or take decisions when this Agreement so provides.

5. At the request of a Party, or upon a reference from the relevant specialised committee, or when preparing a discussion in the Trade Committee, the Committee on Trade in Goods may address matters arising in the areas of customs and sanitary and phytosanitary measures if this could facilitate the resolution of a matter that cannot otherwise be resolved by the relevant specialised committee.

6. The specialised committees shall inform the Trade Committee of their schedules and agenda sufficiently in advance of their meetings and shall report to the Trade Committee on results and conclusions of their meetings. The existence of a specialised committee shall not prevent either Party from bringing any matter directly to the Trade Committee.

ARTICLE 17.3

Working Groups

1. The following working groups are hereby established under the auspices of the Committee on Trade in Goods:

(a) the Working Group on Intellectual Property Rights, including Geographical Indications; and

(b) the Working Group on Motor Vehicles and Parts.

2. The Trade Committee may decide to establish other working groups for a specific task or subject matter.

3. The Trade Committee shall determine the composition, remit and tasks of the working groups.

4. Unless otherwise agreed by the Parties, working groups shall meet once a year. They shall also meet at the request of either Party or of the Trade Committee. They shall be co-chaired, at appropriate level, by representatives of the Union and Viet Nam. The meetings shall take place alternately in the Union or Viet Nam, or by any other appropriate means of communication as agreed between the Parties. The working groups shall agree on their meeting schedule and set their agenda by mutual consent. They may agree their own rules of procedure in the absence of which the rules of procedure of the Trade Committee shall apply mutatis mutandis.

5. Working groups shall inform the relevant specialised committees of their schedules and agenda sufficiently in advance of their meetings. They shall report on their activities at each regular meeting of the relevant specialised committees. The existence of a working group shall not prevent either Party from bringing any matter directly to the Trade Committee or the relevant specialised committees.

ARTICLE 17.4

Decision-Making of the Trade Committee

1. The Trade Committee shall, for the purpose of attaining the objectives of this Agreement, have the power to take decisions, where provided for in this Agreement. The decisions taken shall be binding on the Parties, which shall take the measures necessary for the implementation of these decisions.

2. The Trade Committee may make appropriate recommendations to the Parties.

3. All decisions and recommendations of the Trade Committee shall be made by mutual consent.

ARTICLE 17.5

Amendments

1. The Parties may amend this Agreement. An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal procedures as provided for in Article 17.16 (Entry into Force).

2. Notwithstanding paragraph 1, the Trade Committee may amend this Agreement as provided for in this Agreement. The Parties shall adopt the decision in the Trade Committee in accordance with their respective applicable legal procedures.

3. Notwithstanding paragraph 1, the list of entities in Sections A (Central Government Entities) to C (Other Covered Entities) of Annexes 9-A (Coverage of Government Procurement for the Union) and 9-B (Coverage of

Government Procurement for Viet Nam) may be modified in accordance with Articles 9.20 (Modification and Rectification to Coverage) and 9.23 (Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement).

ARTICLE 17.6

Evolving WTO Law

If any provision of the WTO Agreement that the Parties have incorporated into this Agreement is amended, the Parties shall consult with each other with a view to finding a mutually satisfactory solution, where necessary. As a result of such a review, the Trade Committee may take a decision to amend this Agreement accordingly.

ARTICLE 17.7

Taxation

1. Nothing in this Agreement shall affect the rights and obligations of either the Union or one of its Member States or Viet Nam under any tax agreement between any Member State of the Union and Viet Nam. In the event of any inconsistency between this Agreement and any tax agreement, that tax agreement shall prevail to the extent of such inconsistency.

2. Nothing in this Agreement shall be construed as preventing the Parties from distinguishing, in the application of the relevant provisions of their fiscal legislation, between taxpayers who are not in the same situation, in particular with regard to their place of residence or with regard to the place where their capital is invested.

3. Nothing in this Agreement shall be construed as preventing the adoption or enforcement of any measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation or other tax arrangements or domestic fiscal legislation.

ARTICLE 17.8

Current Account

The Parties shall authorise, in freely convertible currency, and in accordance with the provisions of Articles of the Agreement of the International Monetary Fund, as applicable, any payments and transfers with regard to transactions on the current account of the balance-of-payments between the Parties which fall within the scope of this Agreement, in particular relating to their respective specific commitments under Sub-Section 6 (Financial Services) of Section E (Regulatory Framework) of Chapter 8 (Liberalisation of Investment, Trade in Services and Electronic Commerce).

ARTICLE 17.9

Capital Movements

1. With regard to transactions on the capital and financial account of balance-of-payments, the Parties shall not impose any restrictions on the free movement of capital relating to investments liberalised in accordance with Section B (Liberalisation of Investment) of Chapter 8 (Liberalisation of Investment, Trade in Services and Electronic Commerce).

2. The Parties shall consult each other with a view to facilitating the movement of capital between them in order to promote trade and investment.

ARTICLE 17.10

Application of Laws and Regulations relating to Capital Movements, Payments or Transfers

Articles 17.8 (Current Account) and 17.9 (Capital Movements) shall not be construed as preventing a Party from applying in an equitable and non- discriminatory manner, and in a way that would not constitute a disguised restriction on trade and investment, its laws and regulations relating to:

(a) bankruptcy, insolvency, bank recovery and resolution, the protection of the rights of creditors, or the prudential supervision of financial institutions;

(b) issuing, trading, or dealing in financial instruments;

(c) financial reporting or record keeping of transfers where necessary to assist law enforcement or financial regulatory authorities;

(d) criminal or penal offences, deceptive or fraudulent practices;

(e) ensuring the satisfaction of judgments in adjudicatory proceedings; or

(f) social security, public retirement or compulsory savings schemes.

ARTICLE 17.11

Temporary Safeguard Measures with Regard to Capital Movements, Payments or Transfers

In exceptional circumstances of serious difficulties for the operation of the Union’s economic and monetary union, or, in the case of Viet Nam, for the operation of the monetary and exchange rate policy, or a threat thereof, the Party concerned may take safeguard measures that are strictly necessary with regard to capital movements, payments or transfers for a period not exceeding one year.

ARTICLE 17.12

Restrictions in Case of Balance-of-Payments or External Financial Difficulties

1. Where a Party experiences serious balance-of-payments or external financial difficulties, or a threat thereof, it may adopt or maintain safeguard measures with regard to capital movements, payments or transfers, which shall:

(a) be non-discriminatory compared to third countries in like situations;

(b) not go beyond what is necessary to remedy the balance-of-payments or external financial difficulties;

(c) be consistent with the Articles of Agreement of the International Monetary Fund as applicable;

(d) avoid unnecessary damage to the commercial, economic and financial interests of the other Party; and

(e) be temporary and phased out progressively as the situation improves.

2. In the case of trade in goods, each Party may adopt restrictive measures in order to safeguard its external financial position or balance-of-payments. Those restrictive measures shall be in accordance with GATT 1994 and the Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994.

3. In the case of trade in services or the liberalisation of investments, each Party may adopt restrictive measures in order to safeguard its external financial position or its balance-of-payments. Those restrictive measures shall respect the conditions mentioned in Article XII of GATS.

4. A Party maintaining or having adopted the measures referred to in paragraphs 1 to 3 shall promptly notify the other Party of them and present, as soon as possible, a time schedule for their removal.

5. Where restrictions are adopted or maintained under this Article, consultations shall be held promptly in the Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement unless consultations are held in other fora. The consultations shall assess the balance- of-payments or external financial difficulty that led to the respective measures, taking into account, inter alia, such factors as:

(a) the nature and extent of the difficulties;

(b) the external economic and trading environment; or

(c) alternative corrective measures which may be available.

The consultations shall address the compliance of any restrictive measures with paragraphs 1 to 3. All relevant findings of statistical or factual nature presented by the IMF shall be accepted and conclusions shall take into account the assessment by the IMF of the balance-of-payments and the external financial situation of the Party concerned.

ARTICLE 17.13

Security Exceptions

Nothing in this Agreement shall be construed as:

(a) requiring either Party to furnish information, the disclosure of which it considers contrary to its essential security interests;

(b) preventing either Party from taking any action which it considers necessary for the protection of its essential security interests:

(i) connected with the production of or trade in arms, munitions and war materials and relating to traffic in other goods and materials and to economic activities carried out directly or indirectly for the purpose of provisioning a military establishment;

(ii) relating to the supply of services carried out directly or indirectly for the purpose of provisioning a military establishment;

(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or

(iv) taken in time of war or other emergency in international relations; or

(c) preventing a Party from taking any action in pursuance of its obligations under the Charter of the United Nations for the purpose of maintaining international peace and security.

ARTICLE 17.14

Preference Utilisation

After one year from the date of entry into force of this Agreement, the Parties shall exchange by 1 July each year annual import statistics for the previous year, including figures at tariff line level, on preferential and on non- preferential trade in goods between them.

ARTICLE 17.15

Disclosure of Information

1. Nothing in this Agreement shall be construed as requiring a Party to make available confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public or private, except where a panel requires confidential information in dispute settlement proceedings under Chapter 15 (Dispute Settlement). In such cases, the panel shall ensure that confidentiality is fully protected.

2. When a Party submits to the Trade Committee or to specialised committees information which is considered confidential under its laws and regulations, the other Party shall treat that information as confidential, unless the submitting Party agrees otherwise.

ARTICLE 17.16

Entry into Force

1. This Agreement shall be approved or ratified by the Parties in accordance with their respective applicable legal procedures.

2. This Agreement shall enter into force on the first day of the second month following the month during which the Parties have notified each other of the completion of their applicable legal procedures for the entry into force of this Agreement. The Parties may agree on another date.

3. Notifications in accordance with paragraph 2 shall be sent to the Secretary-General of the Council of the European Union and to the Ministry of Industry and Trade of Viet Nam.

ARTICLE 17.17

Duration

1. This Agreement shall be valid indefinitely.

2. Either Party may notify the other Party in writing of its intention to terminate this Agreement. The termination shall take effect on the last day of the sixth month after the notification.

ARTICLE 17.18

Fulfilment of Obligations

1. The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall ensure that the objectives set out in this Agreement are attained.

2. If a Party considers that the other Party has committed a material breach of the Partnership and Cooperation Agreement, it may take appropriate measures with respect to this Agreement in accordance with Article 57 of the Partnership and Cooperation Agreement.

ARTICLE 17.19

Persons Exercising Delegated Governmental Authority

Unless otherwise specified in this Agreement, each Party shall ensure that any person, including a state-owned enterprise, an enterprise granted special rights or privileges or a designated monopoly, that has been delegated regulatory, administrative or other governmental authority by a Party at any level of government as provided for in its domestic legislation, acts in accordance with the Party’s obligations as set out in this Agreement in the exercise of its authority.

ARTICLE 17.20

No Direct Effect

Nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons, other than those created between the Parties under public international law. Viet Nam may provide otherwise under its domestic law.

ARTICLE 17.21

Annexes, Appendices, Joint Declarations, Protocols and Understandings

The Annexes, Appendices, Joint Declarations, Protocols and Understandings to this Agreement shall form an integral part thereof.

ARTICLE 17.22

Relations to other Agreements

1. Unless otherwise provided for in this Agreement, previous agreements between the Member States of the Union or the European Community or the Union, of the one part, and Viet Nam, of the other part, are not superseded or terminated by this Agreement.

2. This Agreement shall be part of the overall relations between the Union and its Member States, of the one part, and Viet Nam, of the other part, as provided for in the Partnership and Cooperation Agreement and shall form part of the common institutional framework.

3. Nothing in this Agreement shall be construed as requiring a Party to act in a manner inconsistent with its obligations under the WTO Agreement.

ARTICLE 17.23

Future Accessions to the Union

1. The Union shall notify Viet Nam of any request for accession of a third country to the Union.

2. During the negotiations between the Union and the third country referred to in paragraph 1, the Union shall endeavour to:

(a) provide, upon request of Viet Nam, and to the extent possible, information regarding any matter covered by this Agreement; and

(b) take into account concerns expressed by Viet Nam.

3. The Union shall notify Viet Nam of the entry into force of any accession to the Union.

4. The Trade Committee shall examine, sufficiently in advance of the date of accession of a third country to the Union, any effects which that accession may have on this Agreement. The Parties may, by decision of the Trade Committee, put in place any necessary adjustments of this Agreement or transitional arrangements.

ARTICLE 17.24

Territorial Application

1. This Agreement applies:

(a) with respect to the Union, to the territories in which the Treaty on European Union and the Treaty on the Functioning of the European Union are applied and under the conditions laid down in those Treaties; and

(b) with respect to Viet Nam, to its territory.

References to “territory” in this Agreement shall be understood in accordance with subparagraphs (a) and (b), except as otherwise expressly provided for.

2. As regards the provisions concerning the tariff treatment of goods, this Agreement also applies to those areas of the Union customs territory not covered by subparagraph 1(a).

ARTICLE 17.25

Authentic Texts

This Agreement is drawn up in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, Swedish and Vietnamese languages, each text being equally authentic.

IN WITNESS WHEREOF, the undersigned, duly authorised to this effect, have signed this Agreement.

Съставено в Ханой на тридесети юни две хиляди и деветнадесета година.

Hecho en Hanoi, el treinta de junio de dos mil diecinueve.

V Hanoji dne třicátého června roku dva tisíce devatenáct.

Udfærdiget i Hanoi, den tredivte juni to tusind og nitten.

Geschehen zu Hanoi am dreißigsten Juni zweitausendneunzehn.

Koostatud kolmekümnendal juunil kahe tuhande üheksateistkümnendal aastal Hanois.

Ανόι, 30 Ιουνίου του έτους δύο χιλιάδες δεκαεννιά.

Done at Hanoi on the thirtieth day of June in the year two thousand and nineteen.

Fait à Hanoï, le trente juin de l’année deux mille dix-neuf.

Sastavljeno u Hanoju tridesetog lipnja dvije tisuće devetnaeste.

Fatto a Hanoi il giorno trenta di giugno dell’anno duemiladiciannove.

Hanojā, divi tūkstoši deviņpadsmitā gada trīsdesmitajā jūnijā.

Priimta Hanojuje, du tūkstančiai devynioliktųjų metų birželio tryliktą dieną.

Kelt Hanoiban, a kétezer-tizenkilencedik év június havának harmincadik napján.

Magħmul f’Hanoi fit-tletin jum ta’ Ġunju tas-sena elfejn u dsatax.

Gedaan te Hanoi, dertig juni tweeduizend negentien.

Sporządzono w Hanoi dnia trzydziestego czerwca dwa tysiące dziewiętnastego roku.

Feito em Hanói, ao trigésimo dia do mês de junho do ano de dois mil e dezanove.

Încheiat la Hanoi, la treizeci iunie două mii nouăsprezece.

V Hanoji tridsiateho júna dvetisícdevätnásť. V Hanoju, trinajstega junija leta dva tisoč devetnajst.

Tehty Hanoissa kolmantenakymmenentenä päivänä kesäkuuta vuonna kaksituhattayhdeksäntoista.

Utfärdat i Hanoi den trettionde juni år tjugohundranitton.

Làm tại Hà Nội, ngày 30 tháng 6 năm 2019