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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: 56/2016/TB-LPQT
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Hà
Nội, ngày 30 tháng 9
năm 2016
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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:
Nghị định thư về hỗ trợ sản xuất
phương tiện vận tải có động cơ trên lãnh thổ Việt Nam giữa Chính phủ nước Cộng
hòa xã hội chủ nghĩa Việt Nam và Chính phủ nước Cộng hòa Bê-la-rút, ký tại Min-xcơ ngày 23 tháng 3 năm 2016, có hiệu lực kể từ ngày 05
tháng 10 năm 2016.
Bộ Ngoại giao trân trọng gửi Bản sao
Nghị định thư theo quy định tại Điều 59 của Luật nêu trên./.
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TL.
BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG
Nguyễn Văn Ngự
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PROTOCOL
BETWEEN
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM AND THE GOVERNMENT OF THE
REPUBLIC OF BELARUS ON SUPPORTING THE PRODUCTION OF MOTOR TRANSPORT VEHICLES IN
THE TERRITORY OF THE SOCIALIST REPUBLIC OF VIET NAM
The Government of the Socialist Republic of Viet
Nam and the Government of the Republic of Belarus, hereinafter referred to
individually as a “Party” and collectively as the “Parties”;
Preserving adherence to strengthening
cooperation between the Socialist Republic of Viet Nam and the Republic of
Belarus;
Implementing Article 1.6 of the Free Trade
Agreement between the Socialist Republic of Viet Nam, of the one part, and the
Eurasian Economic Union and its Member States, of the other part, done at
Burabay on 29 May 2015 (the VN-EAEU FTA), regarding the support of priority
investment projects;
Reaffirming the respective rights and
obligations of the Parties under the existing international agreements to which
the Parties are party;
With a view to long-term and mutually
beneficial development of industries of both countries;
Have agreed as follows:
Article
1
Definitions
For the purposes of this Protocol:
“joint venture(s)” shall mean the legal entity established
by the JSC “Minsk Automobile Plant” - managing company of “BELAUTOMAZ” holding
(MAZ) of the Republic of Belarus and the interested enterprise(s) of the
Socialist Republic of Viet Nam in the territory of the Socialist Republic of
Viet Nam in accordance with the provisions of this Protocol and the laws and
regulations of the Socialist Republic of Viet Nam;
“motor transport vehicles” shall mean certain types
of trucks (N) and motor transport vehicles for the transport of ten or more
persons, including the driver (M2, M3), agreed by MAZ and the interested
enterprise(s) of the Socialist Republic of Viet Nam1. The list of motor transport vehicles shall be
included in the production plan(s) of the joint venture(s) which shall be
approved by the Vietnamese Party;
“sets of parts and components of motor transport
vehicles” shall mean a set of parts and components, which is imported by the
joint venture to the territory of the Socialist Republic of Viet Nam and
necessary for industrial assembly of motor transport vehicles, except for the
parts and components produced in the territory of the Socialist Republic of
Viet Nam;
“level of localisation” shall be the local value
added content which is calculated according to the following formula:
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Level of
localisation
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=
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Viet Nam Material
Cost
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+
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Direct Labour Cost
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+
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Direct Overhead
Cost
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+
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Profit
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* 100%
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Price for End
Customer
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For the purposes of calculating the level of
localisation:
1. “Viet Nam Material Cost” shall mean value of
materials, parts or goods originating in the Socialist Republic of Viet Nam
that meet the origin criteria in accordance with Chapter 4 (Rules of Origin) of
the VN-EAEU FTA;
2. Direct Labour Cost shall include wages,
remuneration and other employee benefits associated with the manufacturing
process as required by the laws and regulations of the Socialist Republic of
Viet Nam;
3. Direct Overhead Cost shall include, but not be
limited to commercial and administrative costs; costs of property items
associated with the production process (rental and leasing costs, depreciation
on buildings, taxes, interests on mortgage); leasing costs and interest
payments for plant and equipment; factory guard costs; insurance costs (plant,
equipment and materials used in the manufacture of the goods); utility costs
(energy, electricity, water and other costs of utilities directly associated
with the production of goods); research and development, design and engineering
costs; dies, moulds, tooling and depreciation, maintenance and repair of plant
and equipment; royalties or licenses (in connection with patented machineries
or processes used in the production process of goods or the right to produce
the goods); costs of inspection and testing of materials and goods; costs of
storage and handling in the factory; disposal of recyclable waste costs; and
cost elements used in calculation of the value of raw materials, i.e. port and
clearance charges and import duties paid for dutiable component;
4. “Profit” shall mean net profit of the joint
venture after deducting all taxes and fees provided for in the laws and
regulations of the Socialist Republic of Viet Nam;
5. “Price for End Customer” shall mean the price of
the goods on the sales invoice.
Article
2
Specific
Requirements
1. MAZ may establish one joint venture for trucks
(N) and one joint venture for motor transport vehicles for the transport of ten
or more persons, including the driver (M2, M3) to manufacture motor transport vehicles
in the territory of the Socialist Republic of Viet Nam.
2. If the Belarusian Party intends to replace or
reorganise MAZ it shall send the Vietnamese Party a written proposal and the
feasibility study of the newly proposed enterprise or successor of MAZ which
includes the type(s) of motor transport vehicles to be produced in the
territory of the Socialist Republic of Viet Nam. The Vietnamese Party shall
confirm the eligibility of the newly proposed enterprise or successor of MAZ.
Such newly proposed enterprise or successor of MAZ shall be required to have
had actual manufacture activities of motor transport vehicles in the territory
of the Republic of Belarus for at least 10 consecutive years before the date of
entry into force of this Protocol and shall not be:
a. Owned by a person(s) of a third country by
beneficially owning more than 50 percent of the equity interest in the newly
proposed enterprise or successor of MAZ; or
b. Controlled by a person(s) of a third country by
having the power to name a majority of its directors or otherwise to legally
direct the actions of the newly proposed enterprise or successor of MAZ.
3. The capital contribution ratio of Vietnamese
enterprise(s) in each joint venture shall be at least 50 percent of total
charter capital of the joint venture.
4. The joint venture(s) shall be established for
the period of at least 10 years but not more than 30 years.
5. MAZ shall not transfer its capital in the joint
venture to any third party from a third country.
6. Motor transport vehicles manufactured by the
joint venture for using in the territory of the Socialist Republic of Viet Nam
shall be required to meet the technical regulations, standards and conformity
assessment procedures provided for in the laws and regulations of the Socialist
Republic of Viet Nam.
7. Motor transport vehicles manufactured by the
joint venture have to coincide with ideas, expressed in the Decision on
Approval of Viet Nam’s Automobile Industry Development Master Plan to 2020,
Vision to 2030. The level of localisation as provided for in Article 1
(Definitions) of this Protocol will be gradually increased to 40 percent by
2020 and 60 percent by 2026. If motor transport vehicles manufactured by the
joint venture(s) are not meeting such localisation level requirements by 10
years from the date of entry into force of this Protocol, the Establishment
License/Business Registration Certificate of the joint venture(s) shall be
withdrawn.
8. The origin of motor transport vehicles and the
origin of sets of parts and components of motor transport vehicles imported by
joint venture(s) for industrial assembly in the territory of the Socialist
Republic of Viet Nam, if assembled into complete motor transport vehicles in
the territory of the Republic of Belarus, shall be subject to origin criteria
in accordance with Chapter 4 (Rules of Origin) of the VN-EAEU FTA and approved
by Certificate of Origin issued with indication of 55 percent value added
content calculated in accordance with Chapter 4 (Rules of Origin) of the
VN-EAEU FTA. The value of Vietnamese materials shall be excluded from
calculation of the value added content.
9. The establishment of the joint venture(s) and
the production activities of motor transport vehicles in the territory of the
Socialist Republic of Viet Nam shall be in compliance with the agreement(s)
concluded by MAZ and the interested enterprise(s) of the Socialist Republic of
Viet Nam. Such agreement(s) shall contain provisions which require MAZ
providing support for the operation of the joint venture(s) by the following
measures:
a. Transferring of technology and/or transferring
of industrial property subject matters under a contract(s) of technology
transfer and/or industrial property licensing between MAZ and the interested
enterprise(s) of the Socialist Republic of Viet Nam;
b. Contributing to the development the industry of
spare parts manufacturing and the supporting industry in the territory of the
Socialist Republic of Viet Nam;
c. Developing the system of automobile maintenance
and repair services;
d. Technical personnel training for local workers;
e. Supporting motor transport vehicles, parts and
components of motor transport vehicles manufactured by the joint venture(s) for
exporting to the markets of other countries, including the Eurasian Economic
Union;
f. Granting the joint venture (s) an exclusive
right to supply the same models of the motor transport vehicles, parts and
components of motor transport vehicles manufactured in the territory of the
Socialist Republic of Viet Nam by the joint venture(s) in the markets of the
ASEAN countries.
Article
3
Preferences
1. The Socialist Republic of Viet Nam shall grant
the following tariff rate quotas for duty-free import of the models of motor
transport vehicles imported by the joint venture(s), which are included in the
production plan(s) in the territory of the Socialist Republic of Viet Nam of
such joint venture(s) approved by the Vietnamese Party:
for year 2016: 200 units;
for year 2017: 250 units;
for year 2018: 300 units.
2. The Socialist Republic of Viet Nam shall grant
the following tariff rate quotas for duty-free import of sets of parts and
components of motor transport vehicles necessary for production of motor
transport vehicles imported by the joint venture(s):
for year 2016: 200 sets;
for year 2017: 700 sets;
for year 2018: 1000 sets;
for year 2019: 1050 sets;
for year 2020: 1050 sets.
3. Volume of quota granted in the following year
shall be reduced subject to the implementation of localisation level of the joint
venture(s) in its (their) project execution schedule(s) and utilisation of
quota indicated in paragraphs 1 and 2 of this Article in the previous year:
a. Percentage of the granted quota in the following
year shall be the actual percentage of implementation of localisation level in
the project execution schedule(s) of the previous year;
b. If the quota indicated in paragraphs 1 and 2 of
this Article is not taken up for the previous year it shall be transferred to
the following year;
c. If the joint venture(s) utilise(s) from 50 to 80
percent of the quota indicated in paragraphs 1 and 2 of this Article, the quota
for the following year shall be reduced by 30 percent;
d. If the joint venture(s) utilise(s) less than 50
percent of quota indicated in paragraphs 1 and 2 of this Article, the quota for
the following year shall be reduced by 50 percent.
4. On the basis of the annual production plan(s)
approved by the Vietnamese Party the joint venture(s) will submit an
application(s) to Ministry of Industry and Trade of the Socialist Republic of
Viet Nam (MOIT of Viet Nam) for duty exemption on motor transport vehicles
and/or sets of parts and components of motor transport vehicles, which includes
the Certificate of Origin as provided for in paragraph 8 of Article 2 (Specific
Requirements) of this Protocol and the indicated quantity for all model(s),
expected time schedules of importation and the Harmonized System 8-digit tariff
lines corresponding to motor transport vehicles and/or all motor transport
vehicles parts and components necessary for production of motor transport
vehicles, except for the parts and components of motor transport vehicles
produced in the territory of the Socialist Republic of Viet Nam. Basing on the
provisions of this Protocol, MOIT of Viet Nam will consider and issue import
licenses for the applying joint venture(s) within 10 working days.
5. A joint venture(s) has the right to import
out-of-quota sets of parts and components of motor transport vehicles that will
be used in the manufacture of motor transport vehicles and these motor
transport vehicles will be exported to the other ASEAN countries after
production with the tax payment deadline in accordance with the laws and
regulations of the Socialist Republic of Viet Nam.
6. The Republic of Belarus shall provide insurance,
loan and other forms of support which are within the limits of the laws and
regulations of the Republic of Belarus for the investment cooperation in the
manufacture of motor transport vehicles under this Protocol.
Article
4
Dispute
Settlement
1. Any differences relating to the interpretation
and/or application of this Protocol shall be settled in accordance with Chapter
14 (Dispute Settlement) of the VN-EAEU FTA, except for Articles 14.1
(Objectives), 14.3 (Scope and Coverage), 14.4 (Information exchange and Amicus
Curiae) and 14.15 (Compensation and Suspension of Benefits).
2. For the purposes of this Protocol, the dispute
settlement procedures and provisions set out in Article 14.2 (Definitions),
Articles 14.5 (Good Offices, Conciliation or Mediation) through 14.14
(Implementation), 14.16 (Expenses) and 14.17 (Language) of Chapter 14 (Dispute
Settlement) of the VN-EAEU FTA shall apply with respect to the settlement of
disputes between the Parties to this Protocol regarding the interpretation
and/or application of this Protocol with the following modifications:
a. The term “a disputing Party” referred to in
Chapter 14 (Dispute Settlement) of the VN-EAEU FTA shall mean “a Party to this
Protocol”;
b. The request for consultations referred to in
paragraph 2 of Article 14.6 of the VN-EAEU FTA shall be submitted in writing to
the responding Party through the diplomatic channels; and
c. The request for the establishment of an Arbitral
Panel referred to in paragraph 3 of Article 14.7 (Establishment of Arbitration
Panel) of the VN-EAEU FTA shall be submitted in writing to the responding Party
through the diplomatic channels.
Article
5
Stabilisation
Clause
1. During the term of validity of this Protocol,
where a new legal normative document that provides less favourable investment
incentives than those currently enjoyed by the joint venture(s) is promulgated,
the Socialist Republic of Viet Nam ensures that the joint venture(s) shall keep
enjoying the current incentives for the remaining period of validity of this
Protocol.
2. Paragraph 1 of this Article shall not apply if a
legal normative document of the Socialist Republic of Viet Nam is changed for
reasons of national defense and security, social order and security, public
morals, public health, or environmental protection.
3. If the joint venture(s) is no longer eligible
for the investment incentives due to reasons prescribed in paragraph 2 of this
Article, one or some of the following solutions shall be adopted:
a. Deducting the damage actually suffered by the
joint venture(s) from its (their) taxable income;
b. Adjusting the objectives of the investment
project(s);
c. Assisting the joint venture(s) in recovery from
damage.
4. With regard to the investment assurance measures
in paragraph 3 of this Article, MAZ shall submit a written request to the
Vietnamese Investment Registration Authority within three years from the
effective date of the new legal normative document of the Socialist Republic of
Viet Nam.
Article
6
Amendments
This Protocol may be amended by separate protocols
agreed by the Parties that shall form an integral part of this Protocol.
Amendments shall enter into force in accordance
with Article 7 (Entry into Force and Termination) of this Protocol.
Article
7
Entry
into Force and Termination
This Protocol shall enter into force 10 days after
the date of receipt of the latter written notification of the Parties, through
diplomatic channels, upon completion of internal procedures necessary for its
entry into force.
This Protocol shall remain in force for 10 years
from the date of entry into force and shall be automatically extended every
five years if neither Party declares its intention to terminate it by written
notification through diplomatic channels to the other Party not less than six
months before the expiration of the Protocol.
Done at Minsk, this 23rd day of March 2016, in
duplicate in the English language.
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FOR THE
GOVERNMENT OF
THE SOCIALIST REPUBLIC OF VIET NAM
Vu Huy Hoang
Minister of Industry and Trade
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FOR THE
GOVERNMENT OF
THE REPUBLIC OF BELARUS
Vitaly Vovk
Minister of Industry
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