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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:
46/2013/TB-LPQT
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Hà Nội, ngày 26
tháng 09 năm 2013
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THÔNG BÁO
VỀ
VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định của Luật Ký kết, gia nhập và thực
hiện điều ước quốc tế năm 2005, Bộ Ngoại giao trân trọng thông báo:
Hiệp định giữa Chính phủ nước Cộng hòa xã hội chủ
nghĩa Việt Nam và Chính phủ Đan Mạch về các thủ tục và điều khoản chung, các thể
chế cấp vốn cho dự án sử dụng Công cụ tài chính Doanh nghiệp Danida dành cho nước
Cộng hòa xã hội chủ nghĩa Việt Nam, ký tại Copenhagen ngày 19 tháng 9 năm 2013,
có hiệu lực kể từ ngày 19 tháng 9 năm 2013.
Bộ Ngoại giao trân trọng gửi bản sao Hiệp định theo
quy định tại Điều 68 của Luật nêu trên.
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TL. BỘ TRƯỞNG
VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Nguyễn Thị Thanh Hà
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FRAMEWORK AGREEMENT
BETWEEN
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM AND THE GOVERNMENT OF THE
KINGDOM OF DENMARK CONCERNING GENERAL TERMS AND PROCEDURES AND INSTITUTIONAL
ARRANGEMENTS FOR FINANCING PROJECTS USING THE DANIDA BUSINESS FINANCE
INSTRUMENT TO THE SOCIALIST REPUBLIC OF VIET NAM
The Government of the Socialist Republic of Viet
Nam and The Government of the Kingdom of Denmark have agreed as follows:
1. Definitions
In the present Framework Agreement,
a) The expression "Viet Nam" means the
Government of the Socialist Republic of Viet Nam
b) The expression "Denmark" means the
Government of the Kingdom of Denmark
c) The expression "MPI" means the
Ministry of Planning and Investment of Viet Nam
d) The expression "MOF" means the
Ministry of Finance of Viet Nam
e) The expression "Danida" means the
Ministry of Foreign Affairs of Denmark or the Embassy of Denmark in Hanoi
f) The expressions "the parties or both
parties'' mean MPI and Danida
g) Danida Business Finance refers to the financing
of loans as part of Denmark's Official Development Assistance.
2. Brief Introduction to Danida
Business Finance
Danida Business Finance offers interest free or low
interest loans, normally with 10 years maturity aimed at financing supplies of
equipment and related services for development projects. The instrument is
available for Danida's priority countries and is part of the Strategy for
Denmark's Development Assistance, where poverty reduction, human rights and
green growth are key elements.
3. General Objectives
To continue the cooperation between Viet Nam and
Denmark, Danida has agreed to make the Danida Business Finance instrument
available for development projects in Viet Nam.
4. Financial Terms
Danida Business Finance will be provided in
accordance with OECD's Arrangement on Officially Supported Export Credits.
According to the Arrangement, the concessionality level of tied aid for
individual transactions must include a Danish government grant element of
minimum 35 per cent.
Loans will be granted with the following terms,
provided the international interest level continues approximately at the
present level:
• As a standard, loans will be interest free EUR or
USD loans with 10 years maturity after commissioning. 100 per cent of the
contract can be financed;
• For larger projects especially within the
environmental sector, and where the life span of the project justifies it,
loans with 15 years maturity may be considered. Depending on the prevailing
level of interest rates the loan may carry some interest. 100 per cent of the
contract can be financed;
Danida will pay the following:
• Interest in construction period;
• Interest in repayment period;
• The export premium to Eksport Kredit Fonden (the
Danish Export Credit Fund);
• A bank margin of maximum 0.2 per cent p.a.
More detailed information concerning the financial
and other terms for Danida Business Finance is available in Danida's
"General Conditions for Loan Agreements and the Provision and
Administration of Interest Subsidy under the Mixed Credit Programme for
Developing Countries" (October 2010), and Danida Business Finance brochure
which are attached as annex 1 and 2 to this Framework Agreement.
5. Projects Eligible for
Financing
Under this Framework Agreement, it will be possible
to finance projects involving a buyer from Viet Nam regardless its ownership.
For projects above SDR 2 million (approx. EUR 2.3
million, December 2006) it is in accordance with the OECD Arrangement required
that only projects which, with appropriate pricing determined on market
principles, lack capacity to cover the projects operation costs and to service
normal commercial export credit with 10 years maturity are eligible for mixed
credit finance. For projects below SDR 2 million the OECD rules are more
flexible. Projects below' EUR 1 million are not eligible for financing, unless
otherwise agreed between the parties.
Projects involving the production of military or
paramilitary equipment, alcoholic beverages and tobacco products are not
eligible for financing under this Framework Agreement.
For further information with respect to which
projects that potentially can be financed, reference is made to the
above-mentioned Danida Business Finance brochure.
6. Project Selection
MPI will select the projects to be financed under
this Framework Agreement and present the projects to Danida during annual
meetings, or on ad hoc basis. The presentation of projects by MPI should
include a brief project outline or a Feasibility Study. Based on this list and
on-going communication between Danida and MPI, a mutual selection of projects
will be made. When selected and upon a positive indication from Danida
regarding the eligibility for Danida Business Finance support, the projects
will be included in Danida's pipeline. Danida reserves the right to propose
projects for financing.
MPI will forward feasibility studies on the
projects to Danida. Alternatively, Danida can finance part of the costs related
to the preparation of feasibility studies. On the basis of the feasibility
study and positive screening by the Danida Programme Committee, Danida will
initiate appraisal of the project. The project will then be submitted to
approval by the Danida Grant Committee. After a commercial contract has been
entered into and the loan agreement has been finalized, Danida may finally
approve the project for financing.
MPI will ensure that the Government of the
Socialist Republic of Viet Nam endorses projects proposed for Danida Business
Finance financing at the time the request with enclosed project proposal is
submitted to Danida for screening and that the availability of local funds as
well as loan amount for mixed credits is confirmed at the time project
proposals are submitted to Danida for appraisal MPI will inform Danida of Viet
Nam's decision of fund revisions (if any) of the projects appraised by Danida
before the projects are submitted to Danida Grant Committees for approval.
7. Borrower/Lender
Export credits to be subsidised after approval by
the parties will be provided by the Danish commercial banks or by other Danish
financial institutions acting as Lender. Borrower(s) may be MoF or a buyer with
a guarantee from MoF.
8. Lending and On-lending
Loan agreements for each project will be negotiated
directly between MoF and the Lender. The fees and costs of the Danish
commercial banks will be negotiated case-by-case between the bank acting as
Lender and MoF. Maximum rates accepted by Danida are management fee of 0.375
per cent flat and commitment fee of 0.25 per cent p.a., unless otherwise agreed
between the parties to this Framework Agreement.
Loan Agreements must comply with Danida's
"General Conditions for Loan Agreements and the Provision and
Administration of Interest Subsidy under the Mixed Credit Programme for
Developing Countries" (October 2010), attached as annex 1 under this Framework
Agreement.
If on-lending is applied, MPI will inform the
on-lending margin and possible other financial costs and repayment period to
Danida at the time the proposed project is submitted to Danida for appraisal.
The on-lending margin charged by the Borrower should be kept to a minimum to
ensure that the soft element in the loan is used to support the end-user.
9. Procurement Rules and
Commercial Contracts
Commercial contracts to be financed with export
credits subsidised under this Framework Agreement should be based on
international competitive bidding (ICB), or limited international bidding
(LIB). In cases where a sufficient number of Danish suppliers exist, the
bidding could be limited to Danish suppliers. The Danish delivery shall be
competitive taking into consideration price, technology and quality. There are
no requirements to Danish content of goods and services.
The procurement must be in accordance with Danida's
"Rules and Guidelines for Procurement under Danish Mixed Credits, August
2007", attached as annex 3, unless otherwise specifically agreed between
the parties. The tender evaluation report and the contract documents shall
demonstrate that competitive procurement has taken place, that the process has
been carried out observing internationally recognised good procurement practise
as well as Vietnamese legislation, and that the selected bid is competitive
with regard to technology, price and quality. Unless otherwise agreed
pre-qualification must be applied and at least 2-3 Danish suppliers must be
pre-qualified under the tied Danida Business Finance facility.
For small projects, negotiated contracts (sole
source procurement) may on a case-by-case basis be accepted if agreed to by
both parties in advance, and it should be documented that prices are
competitive and price verification may be required.
Danida will on grant basis provide technical
assistance (TA) to the tendering of projects financed under this Framework
Agreement. Danida and the project owner will have to agree in writing on the
terms and conditions of the TA before Danida appraises the project.
Commercial contracts must follow the FIDIC-format
and comply with Danida's "General Conditions for Approval of Commercial
Contracts Financed under the Mixed Credit Programme (August 2007)",
attached as annex 4 to this Framework Agreement
10. Export Credit Guarantee
An export credit guarantee from Eksport Kredit
Fonden, Danish Export Credit Fund, covering at least 95 per cent of the
outstanding amounts of each loan granted under this Framework Agreement is
required. The guarantee premium will, as mentioned above, be paid by Danida.
11. Reviews
The parties will on a quarterly basis or whenever
deemed necessary by the parties review progress and discuss a pipeline for
projects to be financed under this Framework Agreement
The parties will once a year undertake a more
thorough consultation regarding the Danida Business Finance instrument
including review of progress, agreement on pipeline of projects and any other
matter arising.
The parties will agree to a set of Administrative
Procedures for the administration and implementation of Danida Business Finance
activities in Viet Nam, attached as annex 5. The purpose of the Administrative
Procedures is to ensure a timely implementation or activities, and a clear
division of responsibilities and obligations.
12. Liability
Denmark shall not be liable to indemnify any third
party in respect of any claim, debt, damage or demand arising out of the
implementation of this Framework Agreement and which may be made against Danida
or its staff.
13. Taxes and Duties
Customs, duties and taxes for projects approved by
Danida for financing in 2013 or after will not be exempted from VAT for locally
procured services and goods procured.
14. Evaluation and Auditing
Danida will inform MPI in advance about any review.
MPI will support and provide all necessary documentation for evaluation and
auditing of the use of the credits and for study of projects financed within
five years after their completion. The evaluation will be undertaken by Danida
or by the Danish State Auditors, and may involve site visits. Danida will
exchange views with MPI of review conclusion before any official announcement.
15. Disputes
Any disputes concerning the interpretation or
implementation of the Framework Agreement shall be settled by negotiation
between the parties to this agreement.
16. Fraudulent Practices
Denmark or Viet Nam may cancel the implementation
of the Framework Agreement, or projects under its execution, if it determines
that, with respect to the Danish funds:
1) Corrupt or fraudulent practices were engaged in
by the representatives of the Borrower or Lender or of the Buyer or Seller
during procurement or during execution of a contract; and
2) Timely and appropriate action satisfactory to
Denmark and Viet Nam to remedy the situation has not taken place.
Firms may be barred from contracts financed with
Danish funds, either indefinitely or for a specific period of time if Denmark
determines that the firm is engaged in corrupt or fraudulent practices in
competing for or in executing a contract financed with Danish funds.
17. Entry into Force,
Alterations and Termination
The Framework Agreement will enter into force when
signed by both Parties and shall remain in force until 31 December 2018. The
Agreement will be automatically extended on annual basis, unless one Party
informs the other of its decision to terminate it, by means of a written
notification by giving ninety days' notice before expiry.
Either Party may suggest alterations. Such
suggestions shall be submitted to the other Party in writing, in the English
language. Alterations shall enter into force when duly signed by both parties.
Each Party may terminate this Framework Agreement
in whole or in part, by giving a ninety days' notice in writing, in the English
language:
Signed in Copenhagen on 19 September 2013 in two
copies in the English language.
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FOR THE
GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM
MINISTER FOR PLANNING AND INVESTMENT
Bui Quang Vinh
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FOR THE
GOVERNMENT OF
THE KINGDOM OF DENMARK
MINISTER FOR DEVELOPMENT COOPERATION
Christian Friis Bach
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ANNEX 3
ADMINISTRATIVE PROCEDURES FOR DANISH BUSINESS FINANCE
SUPPORT
1. Eligible Vietnamese organization submits an
application for Danida Business Finance support to the Ministry of Planning and
Investment (MPI).
The application letter to MPI should include an
official request and a project description, both prepared in Vietnamese and
English languages. The project description should include detailed information
about the project size, project background, deliveries (type and contract
amount), buyer's organisation, budget, financial set up including guarantor,
timetable etc. Project outline should cover the content required by the
Vietnamese Government's Decree No. 38/2013/ND-CP dated 23 April 2013 on
management and utilization of official development assistance (ODA) and
concessional loans of donors.
2. MPI forwards the proposed project for financing
by Danida Business Finance to the Embassy of Denmark in Hanoi, including
information on the approval of local budgets and loan amount for the project
and the terms of on-lending.
3. Projects proposed for financing are screened by
the Ministry of Foreign Affairs of Denmark (Danida). The Embassy will convey
the result of the screening process to MPI. Danida will either reject the
project or give a preliminary indication to continue project preparations. If
sufficient information is made available to Danida, screening of a project can
normally be carried out within a period of two months.
When a project is given a positive indication
regarding eligibility for Danida Business Finance support, it will be included
in the pipeline of projects to be appraised by Danida. Danida at this stage
will officially give MPI an indication of support to the feasibility study
preparation and provision of technical assistance (TA) on tendering process.
4. Danida will provide technical support to
tendering financed by Danida Business Finance. The objectives of the TA are:
- To verify that the project tendered and
contracted is in accordance with the Danida approved Appraisal Report
- To ensure that the tender process is in
accordance with Danida's "Rules and Guidelines for Procurement under
Danish Mixed Credits"
- To verify that the signed commercial contract is
in accordance with Danida's "General Conditions for Approval of Commercial
Contracts"
- To provide advice to the buyer during the tender
process
5. MPI requests eligible projects to prepare
Feasibility studies in English. (According to Guidelines for Feasibility
Studies for Mixed Credit Projects, available on dbfinance.um.dk). The F/S
should be presented to the competent agencies as stipulated by the Vietnamese
laws for
approval.
6. When a Feasibility Study has been screened by
MPI with an indicative budget, it should be forwarded to the Embassy with a
request for appraisal together with a confirmation that local funds and funds for
the loan have been approved by the appropriate Vietnamese authorities.
7. Danida arranges for appraisal of the proposed
project. The appraisal team will brief MPI, MOF and Project owner on its
preliminary findings at the end of the mission. An appraisal can normally be
launched within three months after the projects have been screened by Danida.
8. Based on the report prepared by the appraisal
team, MPI will inform Danida of Vietnam's comments, including decision of fund
revisions (if any) for the appraised project, normally within two months after
receipt of the report.
9. Upon receipt of the final response from MPI, the
project is normally presented to Danida's Grant Committees within two months.
The result of Danida's assessment and the revised appraisal report will be
conveyed by the Embassy to MPI, MOF and the project owner, including specific
conditions for support and information on next steps.
10. The project owner initiates the tendering
process of the project in accordance with General Rules and Guidelines for
Procurement under Danish Mixed Credits, cf. Article 9 of the Framework
Agreement.
11. The project owner forwards the tender
documents, evaluation reports to Danida for no-objection to move forward with
the tender process. All documents must be in English. Danida will as soon as
possible scrutinise the evaluation report to verify that acceptable competitive
procurement has taken place ensuring the best bid in terms of quality and prize
is selected.
12. The Project owner initiates contract negotiations
with the selected bidder. When the commercial contract is signed it is
forwarded to the Embassy/Danida for approval and the payment terms for MoF's
acceptance.
13. Upon contract approval the Ministry of Finance
of Vietnam sends request for financing to the Danish lender. Upon receiving
request for finance from Danish lender, Danida will normally issue final
approval of financing within one week and inform the Vietnamese side. Danida
must approve the loan agreement.
14. Project implementation.
15. Project owner together with the contractor
conduct commissioning, which the independent verification
institution/consultant appointed by Danida will verify.
16. Project owner together with the contractor
conduct end of defects liability inspection, which the independent verification
institute/consultant appointed by Danida will verify.