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BỘ
NGOẠI GIAO
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CỘNG
HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
03/2017/TB-LPQT
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Hà
Nội, ngày 24 tháng 02 năm 2017
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THÔNG BÁO
VỀ VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại Điều
56 của Luật Điều ước quốc tế năm 2016, Bộ Ngoại giao trân trọng thông báo:
Công hàm trao đổi liên quan đến hợp
tác viện trợ không hoàn lại cung cấp trang thiết bị góp phần tăng cường năng lực
đảm bảo an toàn giao thông đường thủy giữa Chính phủ nước Cộng hòa xã hội chủ
nghĩa Việt Nam và Chính phủ Nhật Bản, ký tại Hà Nội
ngày 16 tháng 01 năm 2017, có hiệu lực từ ngày 16 tháng 01 năm 2017.
Bộ Ngoại giao trân trọng gửi Bản sao
Công hàm theo quy định tại Điều 59 của Luật nêu trên./.
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TL.
BỘ TRƯỞNG
Q. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Lê Thị Tuyết Mai
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EMBASSY OF JAPAN
HANOI
Hanoi, January 16,
2017
Sir,
I have the honour to refer to the recent
discussions held between the representatives of the Government of Japan and of
the Government, of the Socialist Republic of Viet Nam (hereinafter referred to
as "the Recipient") concerning Japanese economic cooperation to be
extended with a view to promoting the economic and social development of the
Socialist Republic of Viet Nam, and to propose on behalf of the Government of
Japan the following understanding:
1. For the purpose of contributing to the
implementation of the Economic and Social Development Programme (hereinafter
referred to as "the Programme") by the Recipient, the Government of
Japan shall extend to the Recipient, subject to the relevant laws and
regulations and budgetary appropriations of Japan, a grant of three hundred
million Japanese Yen (¥300,000,000) (hereinafter referred to as “the Grant”).
2. (1) The Grant and its accrued interest shall be
used by the Recipient properly and exclusively for the purchase of the products
and/or services necessary for the implementation of the Programme, enumerated
in a list to be mutually agreed upon between the authorities concerned of the
two Governments (hereinafter respectively referred to as the "Products and
the "Services"), as well as for the payment of such fees necessary
for the implementation of the Programme, provided that the Products are
produced in eligible source countries and the Services are provided by
nationals of eligible source countries.
(2) The list mentioned in sub-paragraph (1) above
will be subject to modifications which may be agreed upon between the
authorities concerned of the two Governments.
(3) The scope of the eligible source countries
mentioned in sub-paragraph (1) above shall be agreed upon between the
authorities concerned of the two Governments.
3. (1) The Recipient shall open a yen ordinary
deposit account at a bank in Japan in the name of the Recipient (hereinafter
referred to as "the Account") within fourteen days after the date of
entry into force of the present understanding and shall notify in writing the
Government: of Japan of the completion of the procedure for opening the Account
within seven days after the date of the opening of the Account.
(2) The sole purpose of the Account is to receive
the payment in Japanese Yen by the Government of Japan referred to in paragraph
4 as well as to make payments necessary for the purchase of the Products and/or
the Services, and such other payment as may be agreed upon between the
authorities concerned of the two Governments.
Sir
Mr. LE QUY VUONG
Vice Minister of Public Security
of the Socialist Republic of Viet Nam
4. The Government of Japan shall execute the Grant
by making payment in Japanese Yen of the amount referred to in paragraph 1 to
the Account during the period between the date of receipt of the written
notification referred to in sub-paragraph (1) of paragraph 3 and March 31, 2017.
The period may be extended by mutual consent between the authorities concerned
of the two Governments.
5. (1) The Recipient shall take necessary measures:
(a) to ensure that the Grant and its accrued
interest be completely disbursed from the Account to be ready for the purchase
of the Products and/or the Services and for the payment of the fees referred to
in sub-paragraph (1) of paragraph 2 within a period of twelve months after the
date of the execution of the Grant unless the period is extended by mutual
consent between the authorities concerned of the two Governments and to refund
the remaining amount upon the completion of the Programme to the Government of
Japan;
(b) to ensure that customs duties, internal taxes
and other fiscal levies which may be imposed in the country of the Recipient
with respect to the payment carried out for and the income accruing from the
supply of the Products and/or the Services be exempted or be borne by its
designated authority and shall not be covered by the Grant;
(c) to give due environmental and social
consideration in the use of the Grant and its accrued interest;
(d) to present to the Government of Japan a report
prepared in a written form acceptable to the Government of Japan on the
transactions on the Account together with copies of contracts, vouchers and
other documents concerning the relevant transactions without delay when the
Grant and its accrued interest are completely used for the purchase of the
Products and/or the Services and for the payment of the fees referred to in
sub-paragraph (1) of paragraph 2, or upon request by the Government of Japan;
(e) to ensure that the Products and/or the Services
be maintained and used properly and effectively for the implementation of the
Programme, and not be used for military purposes;
(f) to ensure that the Products and/or the Services
be utilized, in principle, by end-users including the Recipient itself, for
non-commercial purposes;
(g) to ensure prompt unloading, customs clearance
and internal transportation in the country of the Recipient of the Products;.
(h) to accord the Japanese physical persons and/or
physical persons of third countries whose services may be required in
connection with the supply of the Products and/or the Services such facilities
as may be necessary for their entry into the country of the Recipient and stay
therein for the performance of their work;
(i) to bear all the expenses, other than those
covered by the Grant and its accrued interest, necessary for the implementation
of the Programme; and
(j) to provide the Government of Japan with a final
report on the Programme upon its completion.
(2) While ensuring fair treatment of sources of
information, the Recipient shall provide the Government of Japan with necessary
information, including information on corrupt practice, related to the Grant
and its accrued interest.
(3) With regard to the shipping and marine
insurance of the Products, the Recipient shall refrain from imposing any
restrictions that may hinder fair and free competition among the shipping and
marine insurance companies.
(4) The Products and/or the Services shall not be
exported or re-exported from the country of the Recipient.
6. Further procedural details for the
implementation of the present understanding shall be agreed upon through consultation
between the authorities concerned of the two Governments.
7. The two Governments shall consult with each
other in respect of any matter that may arise from or in connection with the
present understanding.
I have further the honour to propose that this Note
and your Note in reply confirming on behalf of the Recipient the foregoing
understanding shall constitute an agreement between the two Governments, which
shall enter into force on the date of your Note in reply.
I avail myself of this opportunity to extend to you
the assurance of my high consideration.
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UMEDA KUNIO
Ambassador Extraordinary and Plenipotentiary of Japan
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Agreed
Minutes on Procedural Details
With reference to the Exchange of Notes between the
Government of the Socialist Republic of Viet Nam (hereinafter referred to as
“the Recipient” ) and the Government of Japan dated January, 16, 2017
concerning Japanese economic cooperation to be extended with a view to
promoting the economic and social development of the Socialist Republic of Viet
Nam (hereinafter referred to as "the Exchange of Notes"), the
representatives of the Recipient and of the Government of Japan wish to record
the following procedural details, as agreed upon between the authorities concerned
of the two Governments:
1. List of Eligible Products
and/or Services and Eligible Source Countries
The products and/or the services referred to in
sub-paragraph (1) of paragraph 2 of the Exchange of Notes (hereinafter
respectively referred to as the "Products" and the
"Services") and the eligible source countries referred to in
sub-paragraph (3) of paragraph 2 of the Exchange of Notes shall be those
enumerated in Appendix I.
2. Procurement.
(1) The grant referred to in paragraph 1 of the
Exchange of Notes (hereinafter referred to as "the Grant") and its
accrued interest shall be used for the purchase of the Products and/or the
Services as well as for such fees necessary for the implementation of the
Programme.
(2) In order to ensure compliance with such
requirements, it is required that the Recipient employ an independent and
competent agent for procurement of the Products and/or the Services.
The Recipient shall, therefore, conclude an
employment contract, within three months after the date of entry into force of
the Exchange of Notes, with Japan International Cooperation System (hereinafter
referred to as "the Agent") to act on behalf of the Recipient in
accordance with the Scope of the Agent's Services as set forth in Appendix II.
(3) The said employment contract shall become
effective upon the approval by the Government of Japan in a written form.
(4) The contracts for the purchase of the Products
and/or the Services shall be concluded in Japanese Yen between the Agent and
Japanese nationals, unless otherwise agreed upon between the authorities
concerned of the two Governments (The term "Japanese nationals" in
the present Agreed Minutes on Procedural Details means Japanese physical
persons or Japanese juridical persons controlled by Japanese physical
persons.).
(5) The Products and/or the Services shall be
procured in accordance with the procurement guidelines designated by the
Government of Japan, which set forth, inter alia, the procedures of tendering
to be followed except where such procedures are inapplicable or inappropriate.
(6) The Recipient shall take necessary measures to
expedite utilization of the Grant and its accrued interest, including
facilitation of the existing import procedures.
(7) The Recipient shall ensure that any official of
the Recipient does not undertake any part of the work of Japanese nationals
and/or the work of nationals of third countries on purchase of the Products
and/or the Services (The term "nationals of third countries" in the
present Agreed Minutes on Procedural Details means physical or juridical
persons of third countries.).
3. The Committee
(1) After the date of entry into force of the
Exchange of Notes, the two Governments shall appoint their representatives who will
be members of a consultative committee (hereinafter referred to as "the
Committee"), the role of which shall be to discuss any matter that may
arise from or in connection with the Exchange of Notes. After the approval of
the employment contract referred to in sub-paragraph (3) of paragraph 2 above,
the Agent shall appoint its representative who will participate in the
Committee meetings as an adviser.
(2) The Committee shall be chaired by the
representative of the Recipient. Representatives of other organizations than
the Agent may, when necessary, be invited to participate in the Committee
meetings to provide advisory services.
(3) The terms of reference of the Committee shall
be as set forth in Appendix V.
(4) The first meeting of the Committee shall be
held after the approval by the Government of Japan of the employment contract
referred to in sub-paragraph (3) of paragraph 2 above. Further meetings will be
held upon request of either the Government of Japan or the Recipient. The Agent
may advise the two Governments on the necessity to call a meeting of the
Committee.
4. Disbursement Procedure
Disbursement procedure relating to the procurement
of the Products and/or the Services and the Agent's fees under the Grant and
its accrued interest shall be as follows:
(1) The Recipient (or its designated authority) and
the bank in Japan referred to in sub-paragraph (1) of paragraph 3 of the
Exchange of Notes (hereinafter referred to as "the Bank") shall
conclude an arrangement regarding transfer of funds in which the Recipient
shall designate the Agent as the representative acting in the name of the
Recipient concerning all transfers of funds to the Agent.
(2) The Agent shall make requests to the Bank for
transferring of funds to cover expenses necessary for the procurement of the
Products and/or the Services and the Agent's related services set forth in
Appendix II. Each of the requests shall be accompanied by a detailed estimate
of the expenses which is to be covered by the funds transferred and a copy of
the approval by the Government of Japan of the contract referred to in
sub-paragraph (3) of paragraph 2 above. A copy of the request and of the
estimation shall be sent at the same time to the Recipient.
(3) Pursuant to the Agent's request as per
sub-paragraph (2) above, the Bank shall notify the Recipient of the request
made by the Agent. The Bank shall pay the amount to the Agent from the account
referred to in sub-paragraph (1) of paragraph 3 of the Exchange of Notes
(hereinafter referred to as "the Account") unless the Recipient makes
opposition to such payment within ten working days after the notification by
the Bank. The Agent shall make payments to suppliers of the Products and/or the
Services from the funds received (hereinafter referred to as "the Advances")
in accordance with the terms of the contracts with them.
After such payments, the Agent may use the
remaining amount of the Advances, if any, for the procurement of other eligible
Products and/or the Services without transferring the said amount back to the
Account.
(4) When the total of the remaining amount in the
account of the Agent (hereinafter referred to as "the Remaining
Amount") is less than three per cent (3%) of the Grant and its accrued
interest, the Recipient may request the Agent to reimburse the Remaining Amount
to the Recipient for payments which have already been made by the Recipient for
the procurement of the Products and/or the Services and have not been covered
by the Grant and its accrued interest, provided that such payments have been
made on or after the date of entry into force of the Exchange of Notes. In this
case, the eligible source countries of the said Products and/or the Services
may be all countries and areas except the Socialist Republic of Viet Nam,
notwithstanding the provisions of Appendix I.
When the Agent deems the request by the Recipient
appropriate and a Certificate of Eligible Procurement for the Remaining Amount
certified by both the Recipient and the Agent as per the form set forth in
Appendix IV is issued, the Agent shall reimburse the Remaining Amount to the
Recipient.
(5) With respect to (a) of sub-paragraph (1) of
paragraph 5 of the Exchange of Notes, no further disbursement shall be made
after the period mentioned in the said sub-paragraph expires, unless otherwise
agreed between the authorities concerned of the two Governments.
5. Refund of the Remaining Amount
With respect to (a) of sub-paragraph (1) of
paragraph 5 of the Exchange of Notes, when the Government of Japan finds, upon
the receipt of the final report, that the use of the Grant and its accrued
interest is incomplete, it shall notify the Recipient of the procedures for
refunding of the remaining amount in the Account and the Remaining Amount. The
Recipient shall refund such amount to the Government of Japan without delay
through such procedures as notified above.
Hanoi, January 16,
2017
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Mr. LE QUY
VUONG
Vice Minister of Public Security of the Socialist Republic of Viet Nam
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UMEDA KUNIO
Ambassador Extraordinary and Plenipotentiary of Japan
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Appendix
I
List of Eligible
Products and/or Services and Eligible Source Countries
1. Eligible Products and/or Services
(1) Eligible Products
- Equipment for building capacity to ensure public
security
- Related equipment and materials for the operation
and maintenance of equipment for building capacity to ensure public security
(2) Eligible Services
- Services necessary for the transportation of the
Products mentioned in 1. (1) above
- Training services and other necessary services
for the operation and maintenance of equipment for building capacity to ensure
public security
- Consultant services
2. Eligible Source countries
The eligible source country shall be Japan, unless
otherwise decided upon by mutual consent between the authorities concerned of
the two Governments
Appendix
II
Scope of the Agent's Services
1. Provision of information and advice to the
Committee meetings
2. Ensuring that the Recipient and the end-users
fully understand the procedures to be employed, where necessary
3. (1) preparation of specifications of the
Products and/or the Services for the Recipient, including, where necessary,
detailed discussions with the end-users
(2) Preparation of bid documents appropriate to the
type and value of the Products and/or the Services to be procured
(3) Advertisement of bids, where the competitive
bidding is to be held, the wording of which is to be agreed upon between the
two Governments
(4) Evaluation of bids, including both technical
and financial considerations
(5) Submission of recommendations to the Recipient
for approval to place order with suppliers
4. Receipt and utilization of the Advances in
accordance with the employment contract with the Recipient referred to in
sub-paragraph (2) of paragraph 2 of the Agreed Minutes on Procedural Details
5. Negotiations and conclusion of contracts with
suppliers, including satisfactory payment, shipment and inspection arrangements
6. Checking the progress of supplies to ensure that
delivery dates are met
7. Providing the Recipient and end-users with
documents containing detailed information of progress of orders, notification
of orders placed, amendments to contracts, delivery information, shipping
documents, etc.
8. Payment to suppliers from the Advances
9. Providing the following documents to the two
Governments:
(1) Certificate of Eligible Procurement as per
Appendix III
(2) Pro forma invoice
10. Preparation of quarterly status reports for the
two Governments, covering enquiries, orders, order status, values and delivery
information
11. Submission of quarterly statements to the two
Governments detailing balance against the Grant and its accrued interest and
all disbursements for the quarter
12. Submission to the Government of Japan of an
overall evaluation report including details of all the Products and/or the
Services shipped, source country, delivery date, value of the Products and/or
the Services (including relevant charges) and total amounts disbursed and
remaining
Appendix
III
Certificate of Eligible Procurement
Date:
Ref. No.:
To whom it may concern:
With reference to the pro forma invoice attached
hereto, we hereby certify that the procurement complies with all the relevant
terms and conditions of the Exchange of Notes between the Government of Japan
and the Government of the Socialist Republic of Viet Nam dated January, 16,
2017 and the Agreed Minutes on Procedural Details between the two Governments
dated January, 16, 2017.
The following are the principal relevant facts
concerning the procurement.
1. Method of Procurement
(Insert x in appropriate place)
a.: Competitive Bidding
b.: Limited Bidding
c.: Shopping
d.: Direct Contracting
2. Products and/or Services
a. Name of Products and/or Services:
b. Origin:
3. Cost of Products and/or Services
a. Products and/or Services:
b. Freight:
c. Marine Insurance:
d. Agent's Fees:
e. Total (a+b+c+d):
4. Supplier
Name:
Address:
Nationality:
(Country where the supplier is incorporated and
registered)
5. Consignee
Name:
Address:
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(Signature)
The Agent
Name Title
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Appendix
IV
Certificate of Eligible
Procurement for the Remaining Amount
(Reimbursement Procedure)
Date:
Ref. No.:
With reference to the payment order, the
undersigned hereby certify that the procurement related to the said payment order
as listed below complies with all the relevant terms and conditions of the
Exchange of Notes between the Government of Japan and the Government of the
Socialist Republic of Viet Nam dated January, 16, 2017 and the Agreed Minutes
on Procedural Details between the two Governments dated January, 16, 2017.
The undersigned representative of the Recipient
further certifies that the Recipient has neither heretofore applied for
reimbursement under the said Exchange of Notes nor for any other financing
arrangements with other sources of official assistance in respect of any of the
amount requested for reimbursement as covered by the payment order.
The following are the principal relevant facts
concerning the procurement.
The following documents (in one copy) are enclosed
herewith for each of the above transactions.
a. Covering letter made by a negotiating/paying
bank
b. Bill of lading, post parcel receipt or air
consignment note
c. Invoice
1. To formulate a time scale plan for the speedy
and effective utilization of the Grant and its accrued interest
2. To exchange views on allocations of the Grant
and its accrued interest as well as on potential end-users
3. To identify problems which may delay the
utilization of the Grant and its accrued interest, and to explore solutions to
such problems
4. To exchange views on publicity related to the
utilization of the Grant and its accrued interest
5. To discuss any other matter that may arise from
or in connection with the Exchange of Notes
With reference to the Exchange of Notes between the
Government of the Socialist Republic of Viet Nam (hereinafter referred to as
“the Recipient” ) and the Government of Japan dated January 16, 2017 concerning
Japanese economic cooperation to be extended with a view to promoting the
economic and social development of the Socialist Republic of Viet Nam
(hereinafter referred to as "the Exchange of Notes"), the
representatives of the Vietnamese Delegation and of the Japanese Delegation
wish to record the following:]
1. With regard to paragraph 2 of the Exchange of
Notes, the representative of the Japanese Delegation stated that the Government
of Japan understands that:
(a) the Recipient will take necessary measures to
prevent any offer, gift or payment, consideration or benefit which would be
construed as a corrupt practice in the country of the Recipient from being made
as an inducement or reward related to the award of the contracts that the agent
referred to in sub-paragraph (2) of paragraph 2 of the Agreed Minutes on
Procedural Details of the Exchange of Notes will enter into with a view to
purchasing the Products and/or the services referred to in paragraph 2 of the
Exchange of Notes.
(b) the Recipient will refund to the Government of
Japan, when the corrupt practice referred to in sub-paragraph (a) above occurs,
the amount of the grant referred to in paragraph 1 of the Exchange of Notes
(hereinafter referred to as "the Grant") equivalent to the amount
spent in such corrupt practice, which is determined by the Government of Japan.
2. The representative of the Vietnamese Delegation
stated that the Vietnamese Delegation has no objection to the statement by the
representative of the Japanese Delegation referred to above.