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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:
57/2016/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 Liên bang Nga, ký tại Mát-xcơ-va ngày 21 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
RUSSIAN FEDERATION 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 Russian Federation, hereinafter referred to
individually as a “Party” and collectively as the “Parties”;
Preserving adherence to strengthening
cooperation between the Socialist Republic of Viet Nam (Viet Nam) and the
Russian Federation (Russia);
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 (the VN-EAEU
FTA), signed on 29th May, 2015, regarding the support of priority investment
projects;
Reaffirming the respective rights and
obligations of Viet Nam and Russia under the Marrakesh Agreement Establishing
the World Trade Organization on 15th April, 1994, and other existing
international agreements to which both Viet Nam and Russia are parties;
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:
“authorised enterprise(s) of Russia” shall include:
1. “Automobile plant “GAZ”, LLC
Legal address: 603004, Russian Federation, Nizhny
Novgorod, pr. Ilyicha, 5;
2. KAMAZ Foreign Trade Company Incorporated
Legal address: 423815, Russian Federation, Republic
of Tatarstan, Naberezhny Chelny, Avtozavodsky avenue, 2;
3. LLC “Ulyanovsky Avtomobilny Zavod” (UAZ)
Legal address: 432034, Russian Federation,
Ulyanovsk, Moskovskoye shosse, 92,
and the newly proposed authorised enterprise(s) of
Russia provided for in paragraph 2 of Article 3 (Specific Requirements) of this
Protocol,
which are authorised by the Russian Party to
establish the joint ventures in the territory of Viet Nam with the interested
enterprises of Viet Nam in accordance with the respective laws and regulations
of Viet Nam and the provisions of this Protocol;
“joint venture(s)” shall mean the legal entity(ies)
established by agreement(s) concluded by the authorised enterprise(s) of Russia
and the interested enterprise(s) of Viet Nam in the territory of Viet Nam in
accordance with the respective laws and regulations of Viet Nam and the
provisions of this Protocol;
“motor transport vehicles” shall mean certain types
of SUV of “UAZ” (M1G), motor transport vehicles for the transport of ten or
more persons, including the driver (M2, M2G, M3, M3G), trucks (N1, N1G, N2,
N2G, N3, N3G) and special purpose motor transport vehicles (SB, SC, SD) agreed
by the authorised enterprise(s) of Russia and the interested enterprise(s) of Viet
Nam.[1] 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;
“semi-knocked down (SKD) industrial assembly” shall
mean the industrial assembly of motor transport vehicles in the territory of
Viet Nam using parts and components both imported by the joint venture(s) to
the territory of Viet Nam and produced in the territory of Viet Nam;
“SKD set” shall mean a set of parts and components,
which is imported by the joint venture(s) to the territory of Viet Nam and
necessary for semi-knocked down industrial assembly of motor transport
vehicles, except for the parts and components produced in the territory of Viet
Nam;
“level of localisation” is 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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EXW Price
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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 territory 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 including compulsory social and health
insurances associated with the manufacturing process as required by the
respective laws and regulations of Viet Nam;
3. Direct Overhead Cost shall include, but is not
limited to commercial and administrative costs; costs of property items
associated with the production process (rental and leasing costs, depreciation
on buildings, taxes, including income tax, 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 licences (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(s) after deducting all taxes and fees provided for in the respective
laws and regulations of Viet Nam;
5. “EXW Price” shall mean the price of the goods on
Ex Works basis which is provided for in Incoterms 2010 by the International
Chamber of Commerce.
Article
2
Subject
The subject of this Protocol is the support for the
production of motor transport vehicles in the territory of Viet Nam in
accordance with the respective laws and regulations of Viet Nam and the
policies of Viet Nam and Russia.
Article
3
Specific
Requirements
1. Each authorised enterprise of Russia is eligible
to establish only one joint venture in the territory of Viet Nam. The
authorised enterprises of Russia may establish totally up to four joint
ventures to manufacture motor transport vehicles in the territory of Viet Nam.
2. If the Russian Party intends to add or replace
the authorised enterprises of Russia indicated in Article 1 (Definitions) of
this Protocol, the Ministry of Industry and Trade of Russia (MOIT of Russia)
shall send the Ministry of Industry and Trade of Viet Nam (MOIT of Viet Nam) a
written proposal and the feasibility study(ies) of the newly proposed
authorised enterprises of Russia which include(s) the type(s) of motor
transport vehicles to be produced in the territory of Viet Nam. The Vietnamese
Party shall confirm the eligibility of the newly proposed authorised
enterprise(s) of Russia within 20 working days from the date of receipt of the
proposal and the feasibility study(ies) from the Russian Party. Such newly
proposed authorised enterprise(s) of Russia shall be required to have had
actual manufacture activities of motor transport vehicles in the territory of
Russia 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 other
than Russia by beneficially owning more than 50 percent of the equity interest
in this (these) authorised enterprise(s); or
b. controlled by a person(s) of a third country
other than Russia by having the power to name a majority of its (their)
directors or otherwise to legally direct the actions of these authorised
enterprise(s).
3. The capital contribution ratio of Vietnamese
enterprise(s) in the joint venture(s) shall be at least 50 percent of the total
charter capital of the joint venture(s).
4. The joint venture(s) shall be established for
the period of at least 10 years but not more than 30 years.
5. The authorised enterprise(s) of Russia in the
joint venture(s) shall not transfer their capital in the joint venture(s) to
any third party from a third country.
6. Motor transport vehicles manufactured by the
joint venture(s) for using in the territory of Viet Nam shall be required to
meet the technical regulations, standards and conformity assessment procedures
provided for in the respective laws and regulations of Viet Nam.
7. Motor transport vehicles manufactured by the
joint venture(s) 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 that the joint venture(s) shall
achieve for years 2020 and 2025 is set as follows:
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Year
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2020
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2025
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SUV of “UAZ”
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30%
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40%
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Motor transport vehicles for the transport of ten
or more persons, including the driver
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35%
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50%
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Trucks
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30%
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45%
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Special purpose motor transport vehicles
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25%
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40%
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If the manufacture of motor transport vehicles of
the joint venture(s) does not meet such localisation level requirements within
10 years from the date of entry into force of this Protocol, Viet Nam shall
have the right to withdraw the Establishment License/Business Registration
Certificate of such joint venture(s).
8. The origin of the motor transport vehicles and
the origin of the SKD sets imported by the joint venture(s) for the
semi-knocked down industrial assembly in the territory of Viet Nam, if
assembled into complete motor transport vehicles in the territory of Russia,
shall be subject to origin criteria in accordance with Chapter 4 (Rules of
Origin) of the VN-EAEU FTA and approved by the Certificate of Origin issued
with indication of not less than 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 value added content.
9. The establishment of the joint venture(s) and
the production activities of motor transport vehicles in the territory of Viet
Nam shall be in compliance with the agreement(s) concluded by the authorised
enterprise(s) of Russia and the interested enterprise(s) of Viet Nam and with
the production plan(s) of the joint venture(s) approved by the Vietnamese
Party. Such agreement(s) shall contain provisions, which require the authorised
enterprise(s) of Russia in the joint venture(s) to provide support for the
operation of the joint venture(s) by the following measures:
a. Transferring of technology under the license
agreement(s) between the authorised enterprise(s) of Russia and the joint
venture(s);
b. Contributing to the development of the
automobile parts manufacturing industry in the territory 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 manufactured by the joint venture(s) for accessing 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
manufactured in the territory of Viet Nam by the joint venture(s) in the
markets of other ASEAN countries.
Article
4
Preferences
1. 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 shall be included in the production plan(s) in the
territory of Viet Nam of such joint venture(s) approved by the Vietnamese
Party:
for year 2016: 800 units;
for year 2017: 850 units;
for year 2018: 900 units.
2. Viet Nam shall grant the following tariff rate
quotas for duty-free import of SKD sets necessary for production of motor
transport vehicles in the semi-knocked down industrial assembly imported by the
joint venture(s):
for year 2016: 0 set;
for year 2017: 2500 sets;
for year 2018: 3000 sets;
for year 2019: 3000 sets;
for year 2020: 2500 sets;
for year 2021: 2500 sets.
3. Volume of quota granted in the following year
shall be 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 may be reduced and be equal to 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 and proposals of MOIT of Russia on the
distribution of quotas, the joint venture(s) will submit an application(s) to
MOIT of Viet Nam for duty exemption on motor transport vehicles and/or SKD
sets, which includes the Certificate of Origin as provided for in paragraph 8
of Article 3 (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 parts and components necessary for production of motor transport vehicles
in the semi-knocked down industrial assembly, except for the parts and
components produced in the territory 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) shall have the right to
import out-of-quota sets of parts and components that will be used in the
manufacturing 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 respective laws and regulations of Viet
Nam.
6. Russia shall provide insurance, credit and other
forms of support which are within the limits of Russian respective laws and
regulations for the investment cooperation in the manufacture of motor
transport vehicles within the framework of this Protocol.
Article
5
Dispute
Settlement
1. Any differences relating to the interpretation
and/or application of this Protocol shall be settled through consultations and
negotiations between the Parties.
2. For the purposes of this Protocol, the dispute
settlement procedures and provisions set out in Article 14.2 (Definitions) and
Articles 14.5 (Good Offices, Conciliation or Mediation) through 14.14
(Implementation) of Chapter 14 (Dispute Settlement) of the VN-EAEU FTA shall
apply mutatis mutandis 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 means “a Party to this
Protocol”;
b. the request for consultations referred to in
paragraph 2 of Article 14.6 (Consultations) of the VN-EAEU FTA shall be
submitted in writing to the responding Party through diplomatic channels; and
c. the request for the establishment of an Arbitral
Panel referred to in paragraph 3 of Article 14.7 (Establishment of Arbitral
Panel) of the VN-EAEU FTA shall be submitted in writing to the responding Party
through diplomatic channels.
Article
6
Stabilisation
Clause
1. During the term of validity of this Protocol,
where a new legal normative document of Viet Nam that provides less favourable investment
incentives than those currently enjoyed by the joint venture(s) is promulgated,
Viet Nam shall ensure that the joint venture(s) 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 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 measure
in paragraph 3 of this Article, the authorised enterprise(s) of Russia in the
joint venture(s) 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 Viet Nam.
Article
7
Amendments
1. This Protocol may be amended by separate
protocols signed by the Parties. Such amendments shall enter into force in
accordance with Article 8 (Entry into Force) of this Protocol.
2. Amendments shall be an integral part of this
Protocol.
Article
8
Entry
into Force
1. 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.
2. 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 three
months before the expiration of the Protocol.
Done at Moscow, this 21st 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 Russian Federation
D.V. Manturov
Minister of Industry and Trade
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