Hiệp định TPP - Chương 29: Trường hợp ngoại lệ

CHAPTER 29

EXCEPTIONS AND GENERAL PROVISIONS Section A:  Exceptions

Article 29.1:  General Exceptions

1.         For the purposes of Chapter 2 (National Treatment and Market Access for Goods), Chapter 3 (Rules of Origin and Origin Procedures), Chapter 4 (Textile and Apparel Goods), Chapter 5 (Customs Administration and Trade Facilitation), Chapter 7 (Sanitary and Phytosanitary Measures), Chapter 8 (Technical Barriers to Trade) and Chapter 17 (State-Owned Enterprises and Designated Monopolies), Article XX of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis.¹

2.         The Parties understand that the measures referred to in Article XX(b) of GATT 1994 include environmental measures necessary to protect human, animal or plant life or health, and that Article XX(g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.

3.         For the purposes of Chapter 10 (Cross-Border Trade in Services), Chapter 12 (Temporary Entry for Business Persons), Chapter 13 (Telecommunications), Chapter 14 (Electronic Commerce)² and Chapter 17 (State-Owned Enterprises and Designated Monopolies), paragraphs (a), (b) and (c) of Article XIV of GATS are incorporated  into  and  made  part  of  this  Agreement,  mutatis  mutandis.³  The Parties  understand  that  the  measures  referred  to  in  Article  XIV(b)  of  GATS include environmental measures necessary to protect human, animal or plant life or health.

4.         Nothing in this Agreement shall be construed to prevent a Party from taking  action,  including  maintaining  or  increasing  a  customs  duty,  that  is authorised by the Dispute Settlement Body of the WTO or is taken as a result of a decision by a dispute settlement panel under a free trade agreement to which the Party taking action and the Party against which the action is taken are party.

Article 29.2:  Security Exceptions

Nothing in this Agreement shall be construed to:

 (a)       require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or

 (b)       preclude   a   Party  from   applying   measures   that   it   considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

Article 29.3:  Temporary Safeguard Measures

1.         Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers for current account transactions in the event of serious balance of payments and external financial difficulties or threats thereof.

2.         Nothing in this Agreement shall be construed to prevent a Party from adopting or maintaining restrictive measures with regard to payments or transfers relating to the movements of capital:

 (a)       in the event of serious balance of payments and external financial difficulties or threats thereof; or

 (b)       if, in exceptional circumstances, payments or transfers relating to capital movements cause or threaten to cause serious difficulties for macroeconomic management.

3.         Any measure adopted or maintained under paragraph 1 or 2 shall:

 (a)       not be inconsistent with Article 9.4 (National Treatment), Article

9.5  (Most-Favoured-Nation  Treatment),  Article  10.3  (National

Treatment),   Article   10.4   (Most-Favoured-Nation   Treatment),

Article   11.3   (National   Treatment)   and   Article   11.4   (Most- Favoured-Nation Treatment);⁴

 (b)       be consistent with the Articles of Agreement of the International

Monetary Fund;

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

 (d)      not  exceed  those  necessary  to  deal  with  the  circumstances described in paragraph 1 or 2;

 (e)       be temporary and be phased out progressively as the situations specified in paragraph 1 or 2 improve, and shall not exceed 18 months in duration; however, in exceptional circumstances, a Party may extend such measure for additional periods of one year, by notifying the other Parties in writing within 30 days of the extension, unless after consultations more than one-half of the Parties advise, in writing, within 30 days of receiving the notification that they do not agree that the extended measure is designed and applied to satisfy subparagraphs (c), (d) and (h), in which case the Party imposing the measure shall remove the measure, or otherwise modify the measure to bring it into conformity with subparagraphs (c), (d) and (h), taking into account the views of the other Parties, within 90 days of receiving notification that more than one half of the Parties do not agree;

 (f)        not   be   inconsistent   with   Article   9.8   (Expropriation   and

Compensation);⁵

(g)        in the case of restrictions on capital outflows, not interfere with investors’ ability to earn a market rate of return in the territory of the restricting Party on any restricted assets;⁶ and

 (h)       not be used to avoid necessary macroeconomic adjustment.

4.         Measures referred to in paragraphs 1 and 2 shall not apply to payments or transfers relating to foreign direct investment.⁷

5.         A  Party  shall  endeavour  to  provide  that  any  measures  adopted  or maintained under paragraph 1 or 2 be price-based, and if such measures are not price-based, the Party shall explain the rationale for using quantitative restrictions when it notifies the other Parties of the measure.

6.       In the case of trade in goods, Article XII of GATT 1994 and the Understanding on the Balance of Payments Provisions of the GATT 1994 are incorporated into and made part of this Agreement, mutatis mutandis.   Any measures adopted or maintained under this paragraph shall not impair the relative benefits accorded to the other Parties under this Agreement as compared to the treatment of a non-Party.

7.         A Party adopting or maintaining measures under paragraph 1, 2 or 6 shall: (a) notify, in writing, the other Parties of the measures, including any

changes  therein,  along  with  the  rationale  for  their  imposition,

within 30 days of their adoption;

 (b)       present,  as  soon  as  possible,  either  a  time  schedule  or  the conditions necessary for their removal;

 (c)       promptly publish the measures; and

 (d)      promptly commence consultations with the other Parties in order to review the measures adopted or maintained by it.

 (i)        In the case of capital movements, promptly respond to any other Party that  requests  consultations  in  relation  to  the measures adopted by it, provided that such consultations are not otherwise taking place outside of this Agreement.

(ii)        In the case of current account restrictions, if consultations in relation to the measures adopted by it are not taking place  under  the  framework  of  the  WTO  Agreement,  a

Party, if requested, shall promptly commence consultations with any interested Party.

Article 29.4:  Taxation Measures

1.         For the purposes of this Article:

designated authorities means:

 (a)      for Australia, the Secretary to the Treasury or an authorised representative of the Secretary;

 (b)       for Brunei Darussalam, the Minister of Finance or the Minister’s

authorised representative;

 (c)       for  Canada,   the  Assistant   Deputy  Minister   for  Tax   Policy, Department of Finance;

 (d)       for   Chile,   the   Undersecretary   of   the   Ministry   of   Finance

(Subsecretario de Hacienda);

 (e)       for Japan, the Minister for Foreign Affairs and the Minister of Finance;⁸

 (f)       for Malaysia, the Minister of Finance or the Minister’s authorised representative;

 (g)      for Mexico, the Minister of Finance and Public Credit (Secretario de Hacienda y Crédito Público);

 (h)      for  New  Zealand,  the  Commissioner  of  Inland  Revenue  or  an authorised representative of the Commissioner;

 (i)       for   Peru,   the   General   Director   of   International   Economy, Competition and Productivity Affairs (Director General de Asuntos de Economía Internacional, Competencia y Productividad del Ministerio de Economía y Finanzas);

 (j)        for Singapore, the Chief Tax Policy Officer, Ministry of Finance;

 (k)       for the United States, the Assistant Secretary of the Treasury (Tax

Policy); and

(l)        for Viet Nam, the Minister of Finance,

8   For the purposes of consultations between the designated authorities of the relevant Parties, the contact point of Japan is the Ministry of Finance.

or any successor of these designated authorities as notified in writing to the other

Parties;

tax convention means a convention for the avoidance of double taxation or other international taxation agreement or arrangement; and

taxes and taxation measures include excise duties, but do not include:

 (a)       a “customs duty” as defined in Article 1.3 (General Definitions); or

 (b)       the measures listed in subparagraphs (b) and (c) of that definition.

2.         Except as provided in this Article, nothing in this Agreement shall apply to taxation measures.

3.         Nothing in this Agreement shall affect the rights and obligations of any Party under any tax convention.  In the event of any inconsistency between this Agreement  and any such tax convention, that convention shall prevail  to the extent of the inconsistency.

4.         In the case of a tax convention between two or more Parties, if an issue arises as to whether any inconsistency exists between this Agreement and the tax convention, the issue shall be referred to the designated authorities of the Parties in question.   The designated authorities of those Parties shall have six months from the date of referral of the issue to make a determination as to the existence and extent of any inconsistency.  If those designated authorities agree, the period may be extended up to 12 months from the date of referral of the issue.   No procedures concerning the measure giving rise to the issue may be initiated under Chapter 28 (Dispute Settlement) or Article 9.19 (Submission of a Claim to Arbitration) until the expiry of the six-month period, or any other period as may have been agreed by the designated authorities.  A panel or tribunal established to consider a dispute related to a taxation measure shall accept as binding a determination of the designated authorities of the Parties made under this paragraph.

5.         Notwithstanding paragraph 3:

 (a)       Article 2.3 (National Treatment) and such other provisions of this Agreement  as  are necessary to  give effect  to  that  Article shall apply to taxation measures to the same extent as does Article III of GATT 1994; and

(b)       Article 2.15 (Export Duties, Taxes or other Charges) shall apply to taxation measures.

6.         Subject to paragraph 3:

 (a)       Article 10.3 (National Treatment) and Article 11.6.1 (Cross-Border Trade)  shall  apply  to  taxation  measures  on  income,  on  capital gains, on the taxable capital of corporations, or on the value of an investment or property⁹ (but not on the transfer of that investment or  property),  that  relate  to  the  purchase  or  consumption  of particular services, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage that relates to the purchase or consumption of particular services on requirements to provide the service in its territory;

 (b)       Article  9.4  (National  Treatment),  Article  9.5  (Most-Favoured- Nation Treatment), Article 10.3 (National Treatment), Article 10.4 (Most-Favoured-Nation Treatment), Article 11.3 (National Treatment),   Article   11.4   (Most-Favoured-Nation   Treatment), Article 11.6.1 (Cross-Border Trade) and Article 14.4 (Non- Discriminatory Treatment of Digital Products) shall apply to all taxation measures, other than those on income, on capital gains, on the taxable capital of corporations, on the value of an investment or

property9  (but not on the transfer of that investment or property), or taxes on estates, inheritances, gifts and generation-skipping transfers; and

 (c)       Article 14.4 (Non-Discriminatory Treatment of Digital Products) shall apply to taxation measures on income, on capital gains, on the taxable income of corporations, or on the value of an investment or property9  (but not on the transfer of that investment or property), that  relate  to  the  purchase  or  consumption  of  particular  digital

products, except that nothing in this subparagraph shall prevent a Party from conditioning the receipt or continued receipt of an advantage relating to the purchase or consumption of particular digital products on requirements to provide the digital product in its territory,

but nothing in the Articles referred to in subparagraphs (a), (b) and (c) shall apply to:

 (d)       any most-favoured-nation obligation with respect to an advantage accorded by a Party pursuant to a tax convention;

 (e)       a non-conforming provision of any existing taxation measure;

(f)        the continuation or prompt renewal of a non-conforming provision of any existing taxation measure;

9   This is without prejudice to the methodology used to determine the value of such investment or

property under Parties’ respective laws.

 (g)       an  amendment  to  a  non-conforming  provision  of  any  existing taxation  measure  to  the  extent  that  the  amendment  does  not decrease its conformity, at the time of the amendment, with any of those Articles;

 (h)       the adoption or enforcement of any new taxation measure aimed at ensuring  the  equitable  or  effective  imposition  or  collection  of taxes, including any taxation measure that differentiates between persons  based  on  their  place  of  residence  for  tax  purposes, provided that the taxation measure does not arbitrarily discriminate between persons, goods or services of the Parties;¹⁰

 (i)       a provision that conditions the receipt or continued receipt of an advantage relating to the contributions to, or income of, a pension trust, pension plan, superannuation fund or other arrangement to provide      pension,   superannuation   or   similar   benefits,   on   a requirement that the Party maintain continuous jurisdiction, regulation or supervision over that trust, plan, fund or other arrangement; or

 (j)       any excise duty on insurance premiums to the extent that such tax would, if levied by the other Parties, be covered by subparagraph (e), (f) or (g).

7.         Subject to paragraph 3, and without prejudice to the rights and obligations of the Parties under paragraph  5,  Article 9.10.2 (Performance Requirements), Article 9.10.3 and Article 9.10.5 shall apply to taxation measures.

8.       Article 9.8 (Expropriation and Compensation) shall apply to taxation measures.    However,  no  investor  may invoke  Article  9.8  (Expropriation  and Compensation) as the basis for a claim if it has been determined pursuant to this paragraph that the measure is not an expropriation.   An investor that seeks to invoke Article 9.8 (Expropriation and Compensation) with respect to a taxation measure must first refer to the designated authorities of the Party of the investor and the respondent Party, at the time that it gives its notice of intent under Article

9.19 (Submission of a Claim to Arbitration), the issue of whether that taxation measure is not an expropriation.   If the designated authorities do not agree to consider the issue or, having agreed to consider it, fail to agree that the measure is not an expropriation within a period of six months of the referral, the investor may submit its claim to arbitration under Article  9.19 (Submission of a Claim to Arbitration).

10   The Parties understand that this subparagraph must be interpreted by reference to the footnote to Article XIV(d) of GATS as if the Article was not restricted to services or direct taxes.

9.         Nothing in this Agreement shall prevent Singapore from adopting taxation measures no more trade restrictive than necessary to address Singapore’s public policy objectives arising out of its specific constraints of space.

Article 29.5: Tobacco Control Measures¹¹

A Party may elect to deny the benefits of Section B of Chapter 9 (Investment) with respect to claims challenging a tobacco control measure¹² of the Party.   Such a claim shall not be submitted to arbitration under Section B of Chapter 9 (Investment) if a Party has made such an election.  If a Party has not elected to deny benefits with respect to such claims by the time of the submission of such a claim to arbitration under Section B of Chapter 9 (Investment), a Party may elect to deny benefits during the proceedings.  For greater certainty, if a Party elects to  deny benefits  with  respect  to  such  claims,  any such  claim  shall  be dismissed.

Article 29.6:  Treaty of Waitangi

1.         Provided  that  such  measures  are  not  used  as  a  means  of  arbitrary  or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.

2.         The  Parties  agree  that  the  interpretation  of  the  Treaty  of  Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement.   Chapter 28 (Dispute Settlement) shall otherwise apply to this Article.   A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party’s rights under this Agreement.

Section B:  General Provisions

Article 29.7:  Disclosure of Information

Nothing in this Agreement shall be construed to require a Party to furnish or allow access to information, the disclosure of which would be contrary to its law or 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.

Article 29.8:  Traditional Knowledge and Traditional Cultural Expressions

Subject to each Party’s international obligations, each Party may establish appropriate measures to respect, preserve and promote traditional knowledge and traditional cultural expressions.

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