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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:
49/2012/TB-LPQT
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Hà
Nội, ngày 26 tháng 11 năm 2012
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THÔNG BÁO
VỀ VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại khoản 3 Điều 47 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 Vương quốc Đan Mạch về hợp tác
phát triển về chuyển hóa carbon thấp trong lĩnh vực tiết kiệm năng lượng tại Việt
Nam 2013 - 2015, ký tại Hà Nội ngày 08 tháng 11 năm 2012, có hiệu lực kể từ
ngày 08 tháng 11 năm 2012.
Bộ Ngoại giao trân trọng gửi Bản
sao Hiệp định nêu trên 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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AGREEMENT
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM
AND THE GOVERNMENT OF THE KINGDOM OF DENMARK REGARDING DEVELOPMENT COOPERATION
ON LOW CARBON TRANSITION IN ENERGY EFFICIENCY IN VIET NAM 2013-2015
WHEREAS the Government of the Socialist Republic
of Viet Nam, represented by the Ministry of Industry and Trade (hereinafter
referred to as ‘GoV’) has requested the support of the Government of Denmark
(hereafter referred to as “GoDK”) to contribute towards the funding of the Low
Carbon Transition in Energy Efficiency (hereinafter referred to as the
‘Project’);
WHEREAS GoDK has agreed to support the
implementation of the project as defined in the Project Support Document with
up to an amount of DKK 65 million on a grant basis (hereafter referred to as
“the Grant”), as a financial and technical assistance to the Ministry of
Industry and Trade (MOIT) and the Ministry of Construction (MOC) (hereafter
referred to as the Implementing Partners), who will implement the project;
WHEREAS the general provision of this agreement
is set forth in the agreement between the GoV and the GoDK named General Terms
and Procedures of Development Cooperation dated 25 August 1993;
WHEREAS the GoV and GoDK have agreed that the
Danish Ministry of Foreign Affairs will sign separate subsidiary administrative
agreements with each of the implementing partners under this agreement. The
administrative agreements will define common procedures for consultation and
decision-making, disbursement mechanisms, financial management, monitoring,
reporting and audit, review, evaluation, and exchange of information and
cooperation between the individual implementing partner and the Danish Ministry
of Foreign Affairs;
WHEREAS commitment to international law and
conflict prevention, respect for transparent and good governance processes,
accountability and the fight against corruption, sound macro-economic policies
and the commitment to poverty reduction govern the policies of GoV and GoDK,
and which are prerequisites for this agreement, and hence constitutes essential
elements of this agreement;
WHEREAS the GoV and GoDK shall abide by the
local laws and by applicable international instruments, including the UN
Convention on the Rights of the Child and International Labour Organization
Convention which Viet Nam and Denmark are party to;
WHEREAS GoV and GoDK is committed to the
principles of harmonisation and to strive for the highest degree of alignment
with the budgetary and accountability system of the implementing partners and
the legislation of the GoV so as to enhance effective implementation, to reduce
the administrative burden, to minimise transaction costs and increase
transparency and accountability of the support provided;
NOW THEREFORE GoV and GoDK have decided as
follows:
Article 1 Definitions
For the purpose of this Agreement, unless
otherwise stated, the terms listed below mean the following:
“Parties” in the case of the Government of Viet
Nam/GoV refers to MOIT, and in the case of the Government of Denmark/GoDK
refers to the Ministry of Foreign Affairs, the Ministry of Climate, Energy and
Buildings, the Embassy of Denmark (EDK) in Viet Nam or for both Parties any
other authority empowered to perform the functions exercised by said
authorities.
b) “Joint decision making arrangement” refers to
the overall management of the project, which is the meetings and exchange of
letters between the Parties as described in Article 3.
c) “The Documentation” refers to the Project
Support Document which, by signature, has been approved by the Danish Ministry
of Climate, Energy and Buildings (MCEB), EDK and MOIT and is attached as Annex
1 to this Agreement, hence constituting an integral part hereof. The
Documentation will be reviewed in connection with joint reviews. Changes to the
Documentation are subject to the approval by the joint decision making
arrangement. Development objectives described in the Documentation and the total
amount of the Danish contribution cannot be changed.
d) “National Programme” refers to the Viet Nam
Energy Efficiency and Conservation Programme 2011-2015.
e) “Project period” means the 3-year period of
project implementation, i.e 1 January 2013 to 31 December 2015.
Article 2. Objectives of the
project
1, The development objective of the Danish
project support is “Improved energy efficiency in small and medium enterprises
and buildings in Viet Nam contributes to sustainable development and a
transition to a low carbon economy”, as stated in the Documentation.
2. The immediate objectives of the Danish
project support are:
- For component 1) Energy efficiency in SMEs -
“Small and medium enterprises in at least 3 sectors adopt energy efficiency
measures that will contribute to the VNEEP energy saving targets of between
5-10%.” This objective will be achieved through support to project #2.3 under
the VNEEP 2011-2015, complemented by the initiation of lasting partnerships
between Vietnamese and Danish industries;
- For component 2) Energy efficiency in
buildings - “Improved capacity for implementing Energy efficiency in large
buildings improves and contributes to the VNEEP energy saving targets of
between 5-8%.” This objective will be achieved through support to project
#3.1/3.2 under the VNEEP 2011-15, complemented by the initiation of a
partnership between MOC (Viet Nam) and MCEB (Denmark).
as stated in the Documentation.
3. GoDK will base the actual financial support
on progress attained compared to planned progress described in the
Documentation. Progress will be measured through the implementing partners
monitoring framework.
4. The immediate objectives can only be adjusted
to changes in the project support context by decision of the joint decision
making arrangement described, followed by mutual written agreement between the
Parties. Such written agreement shall become addendum to this agreement.
Article 3. Management and
Execution
The overall management responsibilities of the
project support rests in the Project Steering Committee, which is co-chaired by
the Vice Minister of MOIT and the Danish Ambassador to Viet Nam. Members of the
Project Steering Committee are representatives from MCEB, MOC, and the head of
the Energy Efficiency and Conservation Office (EECO) under MOIT. The work of
the Project Steering Committee is limited to project level issues and will be
guided by Terms of Reference for Project Steering Committee.
Component 1 - Energy Efficiency in SMEs
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Implementing Partner
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MOIT
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Joint decision making arrangement (3)
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Project Steering Committee meetings, exchange
of letters and emails
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Modality
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Targeted Programme Budget Support to the Viet
Nam Energy Efficiency and Conservation Programme
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Component 2 — Energy Efficiency in buildings
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Implementing Partner
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MOC and MOIT
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Joint decision making arrangement
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Project Steering Committee meetings, exchange
of letters and emails
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Modality
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Targeted Programme Budget Support to the Viet
Nam Energy Efficiency and Conservation Programme
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Article 4. Obligations of
GoV
Under this Agreement, the GoV shall:
a) Promptly inform GoDK of any condition which
interfere or threaten to interfere with the successful implementation of the
project support including conditions which may interfere with the successful
implementation of the National Programme;
b) Within a reasonable time advice on all
reports, recommendations and other matters properly referred for advice by
GoDK, in order not to delay or disrupt the execution of the services or the
works of the project;
c) Ensure that all relevant provisions in the
General Terms and Procedures of Development Cooperation dated 25 August 1993
regarding the GoDK execution of activities are honoured;
d) Investigate matters, if misuse of funds,
fraud or corruption within the project is discovered. The appropriate
authorities i.e. the Criminal Investigation Department or Inspectorate of the
GoV are expected to participate in this endeavour. Where project funds have
been lost in such a manner as described above, the Parties will cooperate in
order to have the implementing partner repay such funds to the project, in
order to ensure that planned activities will not be disrupted;
e) Agree that a prerequisite for GoDK’s support
to the project is that the GoV’s contribution to the National Programme
2011-2015 should at least match the contribution of the GoDK;
f) Allocate sufficient funds from the GoV’s
budget to the National Programme. GoV budgets comprise both capital and recurrent
expenditures. The other funding sources for the National Programme are
international support and contributions by the enterprises. There will be a
balanced focus between supporting physical implementation and capacity building
and between support directed at the provincial and national levels;
g) Ensure that the account for the project is
kept in accordance with Viet Nam’s accounting system, the State Budget Law
(2002) and the relevant Vietnamese government regulation and guidelines;
h) Maintain a financial management system
according to the current state budget management system to properly reflect the
fund allocation, transactions, resources, expenditures and assets of the
project and ensure that the implementing agencies are able to produce timely, relevant
and reliable financial information for planning, implementing and monitoring
the progress of the project against its objectives;
i) Provide the adequate financial and human
resources i.e skilled staff and salary in the Government implementing agencies
throughout the project period;
j) Provide adequate financial capital and
general operational costs. Ensure funds for the payment of all other expenses
required for the establishment and operation of the project, which are not
mentioned as items to be provided by the GoDK;
k) Affirm that the resources provided by GoDK
for the project will only be used to cover expenditures included in the state
budget as approved by the National Assembly of Viet Nam and only for the
project, and not any other National Programme or other government programmes;
l) Ensure the tax exemption of expatriate
personnel and their family members follows the Regulation on expatriate
personnel for ODA programmes and projects in Viet Nam which is Decision No.
119/2009/QD-Ttg dated 1/10/2009 of the Prime Minister of Viet Nam and other
documents on amendment, addition, or replacement of this Decision;
m) Facilitate the issue of multiple entry and
exit visas, work permits and residence permits for the advisors and their
families regardless of nationality as well as provide assistance in the
clearance through customs of their personal belongings that they are allowed to
import according to the Regulation mentioned under item (1) above;
n) Equipment, vehicle, materials, supplies and
spare parts to be purchased for the project by the GoDK, if any, will be
exempted from any duties, VAT, taxes, and public fees and charges other than
user's fee and charges, etc. in accordance with Vietnamese regulations. The
refunded VAT and other charges from these equipment and materials will be
transferred to the project funds for the following fiscal year;
o) Ensure timely settlement of any other related
formalities that might keep the project behind schedule;
p) Maintain all project accounting materials
within 5 years after the project’s end for possible use of the National Audit
Office of Denmark.
Article 5. Obligations of
GoDK
Under this Agreement, the GoDK shall:
a) GoDK will provide the following financial
means for the implementation of the project:
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Name of
Component
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Implementing
Partner
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Budget (million
DKK)
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Component 1 - Energy Efficiency in SME
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MOIT
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13,2
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Component 2 — Energy Efficiency in buildings
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MOC
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2,4
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TA or other works contracted by Denmark
including car purchase for the EECO office
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EDK
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11,9
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Project management (energy adviser, mid-term
review, technical missions, audits etc.)
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EDK
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2,5
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Unallocated for investment support (financial
mechanism allocated during inception phase)
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35,0
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Total
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65,0
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b) All commitments of GoDK are made in Danish
Kroner;
c) GoDK will strive to ensure the predictability
of the Grant by informing the GoV not later than the end of the third quarter
of the calendar year, prior to the finalisation of next year’s national budget
about the support anticipated for the coming year under this Agreement;
d) GoDK will cooperate and communicate fully and
in a timely manner with the GoV on all matters relevant to the implementation
of the project as defined in the Project Document and this Agreement;
e) GoDK will inform any changes regarding the
years of commitments or the schedule of disbursements for discussion between
the two Parties before such adjustments are made;
f) GoDK will not bear any responsibility and/or
liability to any third party with regard to implementation of the project.
Article 6. Obligations of
both Parties
Both Parties will:
a) Strengthen aid effectiveness by endeavour to
co-ordinate their efforts under this agreement with other development partners,
be they states, international organisations or non-governmental organisations;
b) Use best endeavours to optimise the use of
project resources.
Article 7. Information,
monitoring and evaluation
1. The Parties shall collaborate fully to ensure
that the purposes of this Agreement be accomplished. To this end, the Parties
shall exchange views with regard to matters relating to the project and provide
each other with all available data, documentation and information; shall
provide appropriate mutual assistance required in the discharging of the
Parties’ duties; and provide all necessary support to facilitate the due
implementation of the project.
2. One mid-term review after approximately one
and a half years shall be jointly conducted by GoDK. The review will focus on
achievements and necessary further steps to guarantee a successful completion
of the project.
3. Technical supervision mission shall be
jointly conducted 2 times per year as part of the partnership to be established
between MCEB and MOIT/MOC.
4. GoDK shall have the right to carry out any
technical or financial mission that is considered necessary to monitor the
implementation of the project. To facilitate the work of the person or persons
instructed to carry out such monitoring missions, the GoV shall provide these
persons with all relevant support if deemed necessary.
5. Evaluation of the project support, preferably
undertaken jointly by GoDK and the GoV may be carried out at the request of
either Party.
6. After the termination of the project support
GoDK reserves the right to carry out evaluation in accordance with this
article.
Article 8. Financial
Management
1. Financial management is the responsibility of
the GoV. The financial management will include budget management, fund
management, reporting, procurement and audit.
2. Interest accrued from the remittances shall
be returned by the implementing partner to GoDK on an annual basis with
exception of interest accrued from accounts at State Treasury and other bank
that investment support fund deposited.
3. Unspent balance or savings of project funds
will be automatically transferred to the funding of the next fiscal year and
this amount will be deducted from the commitment fund to be provided of that
year. At the end of the Agreement, unless there is another agreement between
the GoV and the GoDK, those funds must be returned to EDK.
4. The accounting and financial management
guidelines for the VNEEP will be the foundation for all financial management
matters in this project.
Article 9. Planning, Accounting
and Reporting
1. The Danish support will be processed and
accounted for through standard GoV budget planning and financial management
system.
2. By no later than 31 August each year, MOIT
will provide to EDK an annual budget and implementation plan with estimated
budget for the National Programme for the next succeeding fiscal year. This
budget plan should comprise the sources and use of funds for the National
Programme including budget allocation for implementing agencies and expected
budget from GoDK to the project for the said year.
3. The following set of documents will be
produced by MOIT and will form the basis of annual disbursement to the SBV’s
account by the EDK. These documents should be sent to the EDK before 31 August
each year, starting from 2014.
a) A report on the budget allocated to the
project for the preceding fiscal year.
b) A financial statement certified by SBV on the
use and balance in the account reserved for project budget expenditure for the
preceding fiscal year, including the date and name/number of the government’s
bank account into which the local currency amounts have been deposited.
c) A financial progress reports including the
preceding fiscal year and cumulated for the current fiscal year for the
project, showing the actual and planed use of fund and implementation.
d) Audit report by SAV as in accordance with the
provisions of Article 11 below.
4. The report on project activities will be
prepared by MOIT in accordance with the GoV’s reporting procedure and provided
to EDK/MCEB in a timely fashion.
Article 10. Procurement
1. The GoV will undertake all procurement in
relation to implementation of the project except procurement of technical
assistance. All procurement of works, goods, services, and training will be
performed in accordance with generally accepted procurement principles and good
practices and be consistent with Viet Nam’s Public Procurement Law (November
2005) and regulations specific to the energy sector.
2. Procurement of vehicle and technical
assistance is the responsibility of the EDK. The EDK will be responsible for
contracting consultants and will consult with the relevant Ministries on the
process and quality of recruitment.
Article 11. Auditing
1. The project is subject to annual audit by the
State Audit of Viet Nam (SAV). MOIT will work with SAV to get an agreement that
financial audits are carried out every year.
2. The audit of the project will be carried out
in accordance with international auditing standards in accordance with the
terms of reference that will be agreed between the MOIT and EDK/MCEB at the
later stage. In principle, the audits will cover:
i. The Treasury accounting system and adherence
to regulations and procedures that cover both GoV and Danish transferred funds;
ii. Propriety with regards to procurement,
contracting and payment (i.e. procurement audit).
3. The MOIT and EDK/MCEB will review the
recommendations of SAV and agree on an action plan for corrective actions on
reported deficiencies and/or misspending (if occurs).
4. At the termination of the project, a final
audit will take place within twelfth months of closure, or as agreed according
to a plan to be outlined in cooperation between GoV and GoDK.
5. Representatives of the Auditor General of
Denmark shall have the right to:
i. Carry out any audit or inspection considering
necessary as regards the use of the Danish funds in question, on the basis of
all relevant documentation;
ii. Inspect accounts and records of suppliers
and contractors relating to the performance of the contract, and to perform a
complete audit.
If the Auditor General of Denmark is satisfied
with annual audit reports to be made by either SAV or an independent external
auditor, the audit or inspection as mentioned in point(i) and (ii) shall not be
required.
6. In case it is EDK/MCEB’s opinion that there
is a need for conducting any special audit review (value for money or
performance audit) as part of the supervision, this will timely consulted with
the Vietnamese implementing agencies on the scope and contents of such an
audit. The Vietnamese Party will offer all reasonable support to facilitate
such a special audit review. The cost of such an audit review will be covered
by the EDK through the project management budget.
Article 12. Transfer of
ownership
1. The implementing partners responsible for the
implementation of project components shall maintain updated inventories of all
equipment financed by earmarked support from GoDK, e.g. vehicles, computers,
furniture and tools.
2. Equipment, material, supplies and facilities
purchased by Denmark, which are used during the implementation of the project,
e.g. vehicles, computers, furniture and tools, remain the property of the
project, until such time as the Parties may agree otherwise.
3. Transfer of ownership of the above-mentioned
assets to the implementing partners may take place during the project period.
Before project termination, the Parties will assess and agree on final transfer
of such assets, which can be justified on the basis of a final request from the
implementing partners.
Article 13. Non-compliance,
Suspension and Force majeure
1. In case of non-compliance with the provisions
of this Agreement and /or violation of the essential elements mentioned in this
Agreement, the GoDK reserves the right to suspend with immediate effect further
disbursements to the implementing partners under this Agreement. Noncompliance
includes inter alia:
- Failure by the Vietnamese Parties to implement
the project in accordance with the conditions of this Agreement;
- Failure by Vietnamese Party, through the key
ministries including MOIT, MOC, MOF in using the grants provided by the GoDK
for the implementation of the project;
- Substantial deviation from the annual budget
plan for the project provided by the Danish funds for other purposes, or
- Failure to comply with financial management
obligation as described in article 8 of this Agreement.
2. If Danish funds administered by the GoV are
found to have been disbursed to activities that are outside the scope of the
objectives and provisions in:
- the Government Agreement;
- the Project Document;
- the work plan and budgets approved by the
Project Steering Committee;
- the Cost Norms or Salary Scale agreed by the
Competent Authorities;
such funds will be reimbursed by the GoV to the
GoDK.
3. In case of force majeure e.g. severe natural
disasters including earth quake, tsunami, storms or floods that create
suspension or delay in the project implementation and affect the project effectiveness,
the affected Party should promptly inform the other in writing. If substantial
delay is caused by such situation, an extension of the project implementation
duration might be discussed and decided by the Project Steering Committee.
Article 14. Corruption
1. No offer, payment, consideration or benefit
of any kind, which could be regarded as an illegal or corrupt practice, shall
be made, promised, sought or accepted - neither directly nor indirectly - as an
inducement or reward in relation to activities funded under this agreement,
incl. tendering, award, or execution of contracts. Any such practise will be
grounds for the immediate cancellation of this agreement or parts of it, and
for such additional action, civil and/or criminal, as may be appropriate. At
the discretion of the GoDK, a further consequence of any such practise can be
the definite exclusion from any projects funded by the GoDK.
2. GoV commits that all persons involved in
project activities are under strict obligation to report to the EDK any
suspicion on or actual cases of:
- Fraud;
- Misuse of funds;
- Corruption;
- Breach of contracts;
- Court cases involving a larger amount of
money;
- Loss of funds;
- Possible loss of funds;
- Qualifications or criticism in audit reports
and other instances or misuse of funds not mentioned here.
Article 15. Child Labour
The Vietnamese Party will abide by the local
laws and by applicable international instruments, including the UN convention
on the Rights of the Child and the International Labour Conventions to which
Viet Nam is a member, - in particular the Minimum Age Convention, 1973 (No.
138) taking effect for Viet Nam from 24 June 2003 and the Worst Forms of Child
Labour Convention, 1999 (No. 182) taking effect for Viet Nam from 19 December
2000. The Vietnamese Party will ensure that no-one under 14 years of age or age
of the end of compulsory schooling is engaged by organisations working for the
project.
Article 16. Settlement of
disputes
If any dispute arises between the Parties as to
the interpretation, application or implementation of this agreement, they will
consult each other in order to reach an amicable solution.
Article 17. Amendment
Any amendment to this Agreement shall be agreed,
in writing, between the Parties and shall constitute an integral part of this
Agreement.
Article 18. Entry into
force, duration and termination
1. This Agreement shall enter into effect on the
date of signature and shall remain in force until the final audit of the
project is approved.
2. The cooperation between the Parties under
this Agreement will have the duration of three (03) years. The duration of the
cooperation may be extended by mutual agreement and within the agreed budget.
3. Notwithstanding the previous clause each
Party may terminate the Agreement upon six (06) months written notice.
In witness hereof the Parties hereto, acting
through their representatives duly authorised for this purpose, have caused
this Agreement to be signed in two (02) originals in the English language in
Hanoi, Viet Nam on this day of 08 November 2012.
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FOR THE
GOVERNMENT OF THE
SOCIALIST REPUBLIC OF VIET NAM
Vu Huy Hoang
Minister
Ministry of Industry and Trade
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FOR THE
GOVERNMENT OF THE KINGDOM OF DENMARK
Martin Lidegaard
Minister
Ministry of Climate, Energy and Building
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