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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: 38/2017/TB-LPQT
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Hà Nội, ngày 30
tháng 10 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:
Hiệp định “Chương trình hợp
tác tài chính V” giữa Chính phủ nước Cộng hòa xã hội chủ nghĩa Việt Nam và Chính phủ Vương quốc Tây Ban Nha (FCV-V), ký tại Ma-đơ-rít ngày 24 tháng 5 năm 2017,
có hiệu lực kể từ ngày 24 tháng 5 năm 2017.
Bộ Ngoại giao trân trọng gửi bản
sao Hiệp định theo quy định tại Điều 59 của Luật nêu trên./.
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TL.
BỘ TRƯỞNG
VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Lê Thị Tuyết Mai
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V FINANCIAL COOPERATION PROGRAM
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET
NAM AND THE GOVERNMENT OF THE KINGDOM OF SPAIN CONCERNING GENERAL TERMS,
PROCEDURES AND INSTITUTIONAL ARRANGEMENTS FOR FINANCING PROJECTS IN THE
SOCIALIST REPUBLIC OF VIET NAM USING THE SPANISH FUND FOR THE
INTERNATIONALIZATION (FIEM)
The Government of the Socialist
Republic of Viet Nam and the Government of the Kingdom of Spain
Wishing to strengthen the
links of friendship and goodwill between the two countries,
Wishing to deepen the
bilateral cooperation and to increase the level of economic relationship between
both countries,
With the intention to
maintain favourable conditions for the implementation of projects of mutual
interest after four bilateral Financial Cooperation Programs developed during
almost two decades,
Have agreed as follows,
1.
Definitions
In the present V
Financial Cooperation Program,
a) The expression “Viet
Nam” means the Government of the Socialist Republic of Viet Nam,
b) The expression “Spain”
means the Government of the Kingdom of Spain.
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 “FIEM”
means the Spanish Fund for the Internationalization.
f) The expression “MEIC”
means die Ministry of Economy, Industry and Competitiveness of Spain.
g) The expression “SEC”
means the State Secretariat for Trade, under the MEC.
h) The expression “ICO”
means Instituto de Crédito Oficial. ICO is the Spanish State Finance Agency.
i) The expressions “the
parties” or “both parties” mean the Government of the Socialist Republic of
Viet Nam and the Government of the Kingdom of Spain.
2.
Brief Introduction to FIEM
The Spanish Fund for the
Internationalization (FIEM) is a financial facility managed by the SEC, through
the Directorate General for International Trade and Investment, with the
purpose of promoting the internationalization of Spanish companies by providing
medium and long term financing.
Refundable concessional
financing under FIEM is offered as a soft credit to non-resident public
entities to support export operations or turnkey projects executed by Spanish
companies abroad. According to the OECD Arrangement on Officially Supported
Export Credits (hereinafter OECD Arrangement), this type of concessional reimbursable
financing requires three basic conditions; the recipient country must be
eligible for tied aid (low-middle income or lower according to the World Bank),
the project must be commercially nonviable, and the public buyer must offer
sovereign guarantee.
3.
Spanish Committed Funding
MEIC will make available
to the MPI a total amount of 305 million euros, for projects to be
carried out by Spanish firms. The said total amount will be distributed as
follows:
3.1 Spain puts at the
disposal of Viet Nam up to 275 million euros in credits in concessional terms to finance the following
packages of Line 5 of the Ho Chi Minh City's Metro Railway System.
• EP1: Rolling Stock;
Equipment in Stabling Yard; Equipment in Stations; The Overhead Line
Electrification System.
• EP2: Power Supply.
• EP3: Track, rails,
fastenings and switches.
• EP4: Signalling,
Communications and Ticketing (Common Systems).
• FEED (Front End
Engineering Design) Verification Consultant Services
• Project Management
Consultant Services
3.2 Spain will also
finance other projects up to 30 million euros in credits in concessional terms
prioritized by mutual agreement as described in Annex II.
3.3 Additional facilities
could be available for co-financing projects or project components awarded to
Spanish companies through tender financed by multilateral financial
institutions or through international tenders issued with Viet Nam's own
financing
4.
General Objectives
4.1 To continue the
financial cooperation between Viet Nam and Spain, Spain has agreed to make the
FlEM available for financing projects that make a clear contribution to the
economic and social development of Viet Nam, primarily in the following fields:
a) Economic
infrastructure, involving directly or indirectly mass, land and air transportation
b) Energy and renewable
energies
c) Telecommunications.
d) Water Management
e) Solid Waste Treatment
4.2 To support the
internationalization of Spanish companies, FIEM credits will be tied and finance
the total or partial cost of projects prioritized by both parties. In
particular:
• Up to 100% of good and
services of Spanish Origin
• Local expenses and
third countries’ goods and services could amount up to 30% of the total value
of the exported goods and services.
5.
Financial Terms
5.1 FlEM will be provided
in accordance with OECD Arrangement.
The concessionality level
of FIEM credits will be 35 per cent.
According to the OECD
Arrangement (Art. 40) the discount rate used to calculate the concessionality
level of a loan in a given currency, i.e. the Differentiated Discount
Rate (DDR), is subject to annual change on 15 January and is calculated as
follows:
- The average of the
Commercial Interest Rate of Reference of die OECD (CIRR) plus a margin depending
on the repayment term.
- For all currencies the
average of the CIRR is calculated taking an average of the monthly CiRRs valid
during the six-month period between 15 August of the previous year and 14
February of the current year. The calculated rate, including the Margin, is
rounded to the nearest ten basis points.
5.2 The specific,
financial terms of each credit will be submitted to the Vietnamese party on a
yearly basis by MEC, and notified for the list of projects of each year. Some
examples of financial terms for projects in 2016 are attached in Annex I.
5.3 Financial agreements
related to concessional credits will be implemented in accordance with internal
laws of both countries. Such agreements will be negotiated and signed by ICO
and MOF, both acting as representatives of, and duly empowered by, their
respective governments.
6.
Government debt
6.4 Each credit will
abide by the rules of OECD Arrangement and by the respective international and
institutional commitments of both parties.
As described in the
Project Cycle Procedures attached in Annex II, before each credit is submitted
to the Spanish Council of Ministers for final approval, MOF will submit a
letter confirming the acceptance of the financial conditions.
According to current
applicable laws and regulations of Viet Nam (including Law on Public Debt
Management), any credit agreement dully executed by MOF for and on behalf of
Vietnamese Government, shall be treated as a direct public debt of Viet Nam and
consequently constitute a binding and direct liability for Vietnamese
Government.
7.
Projects Eligible for Financing
FIEM will not finance
operations involving exports of defence, paramilitary and police materials intended
to be used by armies, police and security forces or counterterrorism services.
FIEM does not finance
projects related to certain basic social services, such as education, health
and nutrition.
8.
Procurement Rules and Commercial Contracts
8.1 Commercial contracts
to be financed with soft credits under paragraphs 3.1 and 3.2 of this Financial
Cooperation Program should be based on a competitive bidding procedure
restricted to Spanish bidders (all bidders must be Spanish according to the
Spanish Law) according to procedures established in Annex II.
Different procedure of
awarding to a Spanish company could be agreed between MPI and MEIC on
exceptional cases.
8.2. The restricted
tender will be carried out by the Vietnamese Authorities in accordance with the
Vietnamese law, although the Spanish authorities will guarantee that the
awarding process complies with the principles of the Spanish legal system.
8.3. Commercial contracts
to be financed with soft credits under paragraph 3.3 should follow the procedures
established in the guidelines of Annex III.
9.
Technical Assistance for projects
In order to foster
bilateral cooperation and to provide the necessary technical support to get a
smooth implementation of projects, a Spanish State-owned company at the service
and under the supervision of SEC could be entrusted to carry out technical
assistance in the definition, bidding process, follow-up and monitoring of the
implementation, and ex-post evaluation of the projects and feasibility studies,
if necessary. After due consultation with MPI, MEIC will define the specific
tasks to be carried out by this company in each project.
Fees for consultation and
technical assistance of the projects will be borne by the Spanish side.
10. Supervision
of the “implementation of this Financial Cooperation Program and review of the
projects
10.1 The parties will
whenever deemed necessary by any of them review progress and discuss a pipeline
for projects to be financed under this Financial Cooperation Program. A
bilateral Finance Working Group, consisting of representatives of both
countries will supervise the implementation of this Program, including review
of progress, agreement on pipeline of projects and any other matter arising. It
will meet at last once every two years.
10.2 The Spanish party
will he empowered to carry out as many field visits and project checks as
deemed necessary. The Vietnamese party will facilitate these missions and will
provide all the relevant information on the projects to be inspected. All
Project Management Units (PMU) or project implementing agencies must have a project
manager for monitoring and liason tasks between the PMU, the Spanish
authorities and the Spanish seller.
11.
Currency
All documents related to
this Financial Cooperation Program, including the commercial contracts, shall
be denominated in euros.
12.
Tariffs, Taxes and Duties
Tariffs, duties and taxes
levied on imported goods and services into Viet Nam will not be financed
through the facilities established under this Financial Cooperation Program.
13.
Evaluation
MEIC has the right to
entrust to an independent body an ex post evaluation of the implemented
project, in order to check the extent to which the operations have reached
their goals and targets. MPI and MEIC will conclude over project quality.
14.
Disputes Settlement
Any dispute concerning
the interpretation or implementation of the Financial Cooperation Program shall
be settled by negotiation between the parties to this agreement.
15.
Entry into Force, Alterations and Termination
The Financial Cooperation
Program shall enter into force on the date of signature and be valid for a
period of four (4) years.
Once the FCP-Y has
entered into force, the FCP-IV will immediately expire. The remaining funds of
the FCP-IV, if any, will be added to the available facilities established in
Article 3.2, under the conditions laid out in the new Program.
In any case, projects
which are currently implemented under the FCP-IV and those for which the tender
has been already launched will enjoy the financial terms of the FCP-IV until
the expiry of the contract.
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.
The approval of the
individual agreements arising thereof must fulfil the requirements established
by the respective national laws of Viet Nam and Spain.
In case the above
mentioned committed, funds are not fully used up by the mentioned expiry date,
the contracting parties may extend the validity period of the present Financial
Cooperation Program by mutual agreement in written form in the English
language.
Either party may
terminate this Financial Cooperation Program at any time by notifying the other
party in writing, in the English language, of its intention to terminate this
Financial Cooperation Program. In this case, the Financial Cooperation Program
shall terminate ninety (90) days after the date of receipt of such
notification.
Signed in Madrid on the 24th of May 2017
in two copies in the English language.
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The Vice Minister of Ministry of Planning and Investment
of the Socialist Republic of Viet Nam
Nguyen Van Hieu
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The Secretary of
State of Trade of the Kingdom of Spain
Maria Luisa Poncela Garcia
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ANNEX I
SET OF POSSIBLE FINANCIAL
CONDITIONS
First example:
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Repayment period: 33
years.
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Grace period: 17 year
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Currency of disbursement: euros
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Interest rate: 0,2%
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Concessionality level: 35,165% (DDR 2%)
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Second example:
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Repayment period: 35
years.
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Grace period: 15 year
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Currency of disbursement: euros
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Interest rate: 0,2%
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Concessionality level: 35,037% (DDR 2%)
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Third example:
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Repayment period: 29
years.
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Grace period: 20 year
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Currency of disbursement: euros
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Interest rate: 0,10%
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Concessionality level: 35,199% (DDR 1,9%)
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These three alternative
conditions ate valid until the 14th January 2018.
As from this date, new
conditions will be sent at the request of Vietnamese Authorities, according to
the DDR in force.
ANNEX II
PROJECT CYCLE PROCEDURES V
FINANCIAL COOPERATION PROGRAM
STEP 1: Project,
selection
Regarding Art.3.2, projects
will be prioritized by mutual agreement between the parties according to the
following procedure.
MPI will select the
projects to be financed and present the projects to SEC yearly or on ad hoc
basis through the Spanish Economic and Commercial Office.
Based on this list and
on-going communication between SEC and MPI, a mutual selection of prioritized
projects will be made. No projects will be prioritized if the Vietnamese part
does not commit funds to ensure its sustainability beyond the term specified in
the contract.
When selected and upon a
positive indication from SEC regarding the eligibility for FlEM support, the
projects will be included in FIEM’s pipeline. SEC reserves the right to propose
projects for financing and special preference will be given to projects
co-financed with multilateral funds.
Once the project has been
prioritized and accepted by both sides the Spanish side will notify the
financial proposal to the OECD.
STEP 2: Technical
assistance
When necessary, a Spanish
State-owned company at the service and under the supervision of the Spanish MEIC will provide
technical assistance to the Vietnamese side for preparing the feasibility study
and the bidding documents, which shall be respectful of both the Vietnamese and
the Spanish laws.
STEP 3: Bidding
Process and Signature of the commercial contract
Projects financed by
Spanish concessional credits are tied to the procurement of Spanish goods and
services. The bidding process of such projects should therefore be opened to
all legitimate and eligible Spanish companies.
A copy of the information
to be published in Viet Nam shall be sent to the Spanish Economic and
Commercial Office of Spain in Ho Chi Minh City at least 20 days prior to the
first date of publication in the local newspaper.
Publication in Spain will
take place at about the same time as the Vietnamese publication. The Spanish
authorities will disseminate the information in Spain using the electronic
communication services of ICEX and
www.comercio.es.
The bidders will have to
acquire the Bidding Documents in Spain. The acquisition shall be free of
charge. Each party shall communicate the other one which companies have
acquired the Bidding Documents.
The documents shall be
available for acquisition during a period of at least 25 days, and at least 45
days will be given from the end of the period of issuance of bid/tender
documents until the deadline of their submission.
The Spanish Economic and
Commercial Counsellor in Ho Chi Minh City will be kept duly informed of any
relevant issues that may arise during the selection process.
One representative from
the Spanish Economic and Commercial Office in Ho Chi Minh City shall attend the
opening of bids’, session of each tender.
MPI will decide on the awarding of the tender, whose outcome
will be notified to the Spanish MEIC that will give the Non Objection and will
guarantee and communicate its accordance to the general legal principles.
The Vietnamese executing
agency and the awarded Spanish company will then negotiate and sign the
commercial contract.
STEP 4: Ceddit
Approval Procedure
MEC will send an official
letter to the MOF of Viet Nam with the specific financial terms and conditions
applicable to this particular project.
After a positive answer
has been received, the credit dossier has to be approved by the FIEM Committee
-a collegial body chaired by the SEC. The concessional credit will be submitted
afterwards to the Spanish Council of Ministers for final approval.
Following the approval,
ICO will be designated as financial agent of the Kingdom of Spain for that
credit, and will sign the Credit Agreement with the MOF of Viet Nam.
Once the Credit Agreement
has been signed, the implementation of the project can proceed. Disbursements,
will be complying with Vietnamese applicable laws and regulations. Therefore,
ICO shall be disburse directly to exporters, linked to commercial contract
milestones after receiving the disbursement request from Ministry of Finance.
STEP 5: Evaluations
The Spanish MEIC has the
right to entrust to an independent body an ex post evaluation of the
implemented project, in order to check the extent to which the operations have
reached their goals and targets. The Vietnamese MPI and the Spanish MEIC will
conclude over project quality.