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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:
25/2016/TB-LPQT
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Hà
Nội, ngày 09 tháng 5 năm 2016
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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:
Nghị định thư sửa đổi Hiệp định
khung về hợp tác kinh tế toàn diện và các Hiệp định liên quan giữa Hiệp hội các
quốc gia Đông Nam Á và nước Cộng hòa nhân dân Trung Hoa ký tại Kua-la Lăm-pua ngày 21 tháng 11 năm 2015, có hiệu lực kể từ
ngày 01 tháng 7 năm 2016.
Bộ Ngoại giao trân trọng gửi Bản sao
Nghị định thư theo quy định tại Điều 68 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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CERTIFYING
STATEMENT
Protocol
to Amend the Framework Agreement on Comprehensive Economic Co-operation and
Certain Agreements thereunder between the Association of Southeast Asian
(ASEAN) and the People's Republic of China
I. THE UNDERSIGNED Deputy Secretary-General of
ASEAN for Community and Corporate Affairs, hereby certify that the attached
text is a true and complete copy of the Protocol to Amend the Framework
Agreement on Comprehensive Economic Co-operation and Certain Agreements
thereunder between the Association of Southeast Asian (ASEAN) and the People's
Republic of China, signed on 21 November 2015 in Kuala Lumpur, Malaysia, the
original of which has been deposited with the Secretary-General of ASEAN.
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Jakarta, 16 December 2015
AKP Mochtan
Deputy Secretary-General of SEAN
Community and Corporate Affairs
Department
The ASEAN Secretariat
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Protocol to Amend
the Framework Agreement on Comprehensive Economic Co-operation and Certain Agreements
thereunder between the Association of Southeast Asian Nations (ASEAN) and the
People's Republic of China
The Governments of Brunei Darussalam, the Kingdom
of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic,
Malaysia, the Republic of the Union of Myanmar, the Republic of the
Philippines, the Republic of Singapore, the Kingdom of Thailand and the
Socialist Republic of Viet Nam, Member States of the Association of Southeast
Asian Nations (hereinafter referred to collectively as “ASEAN Member States”,
or individually as "ASEAN Member State”), and the People’s Republic of
China (hereinafter referred to as “China”), hereinafter referred to
collectively as “Parties” or individually as “Party”;
RECALLING the Framework Agreement on
Comprehensive Economic Co-operation between the Association of Southeast Asian
Nations (ASEAN) and the People’s Republic of China (hereinafter referred to as
the “Framework Agreement”) signed on 4 November 2002 in Phnom Penh, Cambodia;
RECALLING the Agreement on Trade in Goods of
the Framework Agreement (hereinafter referred to as the “TIG Agreement”) signed
on 29 November 2004 in Vientiane, Lao PDR;
RECALLING the Agreement ort Trade in
Services of the Framework Agreement (hereinafter referred to as the “TIS
Agreement”) signed on 14 January 2007 in Cebu, Philippines;
RECALLING the Agreement on Investment of the
Framework Agreement (hereinafter referred to as the “Investment Agreement”)
signed on 15 August 2009 in Bangkok, Thailand;
RECALLING the Joint Statement of the 16th
ASEAN-China Summit held on 9 October 2013, taking note of the positive role
that the ASEAN-China Free Trade Area (ACFTA) has played in promoting economic
and trade relations and welcoming the initiative for the upgrading of the ACFTA
by, among others, improving market conditions and trade balance among the
Parties as well as expanding the scope and coverage of the Framework Agreement;
DESIRING to improve the ACFTA to better
respond to the evolving global economic architecture through reaffirmation of
the commitment, and to deepen economic linkages between ASEAN and China through
the progressive liberalisation of trade in goods and trade in services, more
trade-facilitative rules of origin, better customs procedures and trade
facilitation measures, improved investment liberalisation, protection,
promotion, and facilitation, enhanced economic and technical cooperation; and
CONFIDENT that an upgrade of the ACFTA would
contribute to increasing the depth and expanding the scope of cooperation, and
promoting trade, services and investment among the Parties.
HAVE AGREED AS FOLLOWS:
CHAPTER
1
AMENDMENT TO THE TIG AGREEMENT
SECTION
A: RULES OF ORIGIN
ANNEX 3 on the Rules of Origin (ROO) of the TIG Agreement
shall be substituted by ANNEX 1 of this Protocol.
SECTION
B: CUSTOMS PROCEDURES AND TRADE FACILITATION
This Section on the Customs Procedures and Trade
Facilitation (CPTF) shall be incorporated into the TIG Agreement:
Article
1
Objectives
The objectives of this Section are to:
(a) ensure predictability, consistency and
transparency in the application of customs law of the Parties;
(b) promote efficient, economical administration of
customs procedures, and the expeditious clearance of goods;
(c) simplify and harmonise customs procedures to
the extent possible; and
(d) promote co-operation among the customs
administrations of the Parties.
Article
2
Scope
This Section applies, in accordance with the
Parties’ respective domestic laws and regulations, to customs procedures
applied to goods traded and the movement of means of transport among the
Parties.
Article
3
Definitions
For the purposes of this Section:
customs administration means:
(a) in relation to China, the General
Administration of Customs of the People’s Republic of China; and
(b) in relation to ASEAN, the customs
administration of each ASEAN Member State and/or competent authorities1 that are responsible under the law of a Party for
the administration of customs law.
customs law means the statutory and
regulatory provisions relating to the importation, exportation, movement or
storage of goods, the administration and enforcement of which are specifically
charged to the customs administrations, and any regulations made by the customs
administrations under their statutory powers;
customs procedures means the treatment
applied by the customs administration of a Party to goods and the means of
transport, which are subject to that Party’s customs law;
Customs Valuation Agreement means the
Agreement on Implementation of Article VII of the General Agreement on Tariffs
and Trade (GATT) 1994, contained in Annex 1A to the WTO Agreement; and
means of transport means various types of
vessels, vehicles, aircraft and pack-animals which enter or leave the territory
of a Party carrying persons, goods or articles, where applicable under each
Party’s domestic laws and regulations.
Article
4
Facilitation
1. Each Party shall ensure that its customs
procedures and practices are predictable, consistent, transparent and
trade-facilitating, including through the expeditious clearance of goods.
2. Customs procedures of each Party shall, where
possible and to the extent permitted by its respective customs law, conform
with the trade-related instruments and recommended practices of the World
Customs Organisation to which that Party is a contracting Party.
3. The customs administration of each Party shall
review its customs procedures to facilitate trade.
4. Customs control shall be limited to that which
is necessary to ensure compliance with customs law of the respective Parties.
Article
5
Customs
Co-operation
To the extent permitted by its domestic laws and
regulations, the customs administration of each Party may, as deemed
appropriate, cooperate with the customs administration of each other, in
relation to:
(a) the implementation and operation of this
Section;
(b) such other issues as the Parties mutually
determine.
Article
6
Use
of Automated Systems
1. The customs administration of each Party, where
applicable, shall endeavour to have its own system that supports electronic
customs transactions.
2. In implementing initiatives, the customs administration
of each Party, taking into consideration the available infrastructure and
capabilities of each Party, shall take into account the relevant standards and
best practices recommended by the World Customs Organisation.
Article
7
Customs
Valuation
The Parties shall apply Article VII of GATT 1994
and the Customs Valuation Agreement to goods traded among them.
Article
8
Tariff
Classification
The Parties shall apply the International
Convention on the Harmonised Commodity Description and Coding System to goods
traded among them.
Article
9
Risk
Management
1. The Parties shall use risk management to
determine control measures with a view to facilitating legitimate trade, and
expediting customs clearance and release of goods.
2. In applying a risk management approach to
customs control, the customs administration of each Party shall regularly
review the performance, effectiveness and efficiency of its systems.
Article
10
Advance Rulings
1. Each Party, through its customs administration,
to the extent permitted by its domestic laws and regulations, on the
application of a person described in Paragraph 3(a), shall provide in writing,
advance rulings in respect of tariff classification and origin of goods.
2. In addition to Paragraph 1, the Parties are
encouraged to provide advance rulings on the appropriate method or criteria,
and the application thereof, to be used for determining the customs value under
a particular set of facts.
3. Each Party, in accordance with its domestic laws
and regulations, shall adopt or maintain procedures for advance rulings, which
shall:
(a) provide that an importer or an exporter or a
producer, authorised by the importing Party, may apply for an advance ruling
before the importation of the goods in question;
(b) require that an applicant for an advance ruling
provide a detailed description of the goods and all relevant information needed
for the issuance of an advance ruling;
(c) provide that its customs administration may, at
any time during the course of an evaluation of an application for an advance
ruling, request that the applicant provide additional information within a
specified period;
(d) provide that any advance ruling be based on the
facts and circumstances presented by the applicant, and any other relevant
information in the possession of the decision-maker; and
(e) provide that the advance ruling be issued to
the applicant expeditiously on receipt of all necessary information.
4. A Party may reject requests for an advance
ruling where the additional information requested by it in accordance with
Paragraph 3(c) is not provided within the specified period.
5. Subject to Paragraphs 1 and 6, each Party shall
apply an advance ruling to all importations of goods described in that ruling
within three (3) years from the date of that ruling or such other period as
specified in that Party’s respective domestic laws and regulations.
6. A Party may modify or revoke an advance ruling:
(a) upon determination that the ruling was based on
an error of fact or law, or the information provided is false or inaccurate;
(b) if there is a change in its domestic laws and
regulations consistent with this Agreement; or
(c) if there is a change in a material fact or
circumstance on which the ruling is based.
7. Subject to the confidentiality requirements of a
Party’s domestic laws and regulations, each Party may publish its advance
rulings.
8. Where an importer claims that the treatment
accorded to an imported good should be governed by an advance ruling, the customs
administration may evaluate whether the facts and circumstances of the said
importation are consistent with the facts and circumstances upon which a ruling
was based.
Article
11
Review and Appeal
1. Each Party shall, in accordance with its
domestic laws and regulations, provide that the importer, exporter or any other
person affected by its administrative rulings, determinations or decisions,
have access to:
(a) a level of administrative review by its customs
administrations independent of the official or office responsible for the
administrative rulings, determinations or decisions, under review. The level of
administrative review may include any authority supervising the customs
administration subject to domestic laws and regulations; or
(b) judicial review.
2. The decision on review and/or appeal shall be
given to the applicant and/or appellant, and subject to the Party’s domestic
laws and regulations, the reasons for such decision shall be provided in
writing.
Article
12
Review of Customs Procedures
The Parties shall, under the mechanism of the
ASEAN-China FTA Joint Committee (ACFTA-JC), periodically review the
implementation of the Section on CPTF with a view to further simplifying and
harmonising customs procedures to the extent possible and developing mutually
beneficial arrangements to facilitate trade among the Parties. A sub-committee
on CPTF will be formed and convened as necessary.
Article
13
Publication and Enquiry Points
1. Each Party shall publish on the internet and/or
in print form all statutory and regulatory provisions and any customs
administrative procedures applied or enforced by its customs administration,
except law enforcement procedures and internal operational guidelines.
2. Each Party shall designate one or more enquiry
points to deal with enquiries from interested persons concerning customs
matters, and shall make available on the internet and/or in print form,
information concerning procedures for making such enquiries.
Article
14
Consultations
1. The customs administrations of the Parties shall
encourage consultations with each other on issues related to trade in goods
arising from the operation or implementation of this Section.
2. Such consultations shall be conducted through
the relevant contact points of the respective customs administrations.
3. Each Party shall provide information on the
contact points of its customs administration to the other Parties and promptly
notify the other Parties of any amendment thereto.
Article
15
Pre-arrival Documentation
The customs administrations of the Parties shall
endeavour to make provision for the lodging and registering or checking of the
goods declaration and its supporting documents prior to the arrival of the
goods.
Article
16
Authorised Economic Operators
1. The customs administrations of the Parties shall
endeavour to establish the programme of Authorised Economic Operators (AEO) to
promote informed compliance and efficiency of customs control.
2. The customs administrations of the Parties shall
endeavour to work towards mutual recognition of AEO.
Article
17
Repayment, Drawback and Security
1. Decisions on claims for repayment shall be
reached and notified in writing to the persons concerned, without undue delay, and
repayment of amounts overcharged shall be made as soon as possible after the
verification of such claims.
2. Drawback shall be paid as soon as possible after
the verification of such claims.
3. Where security has been furnished, it shall be
discharged as soon as possible after the customs administration is satisfied
that the obligations under which the security was required, have been duly
fulfilled.
Article
18
Post Clearance Audit
The customs administrations of the Parties shall
establish and operate post clearance audit for expeditious customs clearance
and enhanced customs control.
Article
19
Temporary Admission
The customs administrations of the Parties shall
facilitate the movement of goods under temporary admission to the greatest extent
possible, in accordance with domestic laws and regulations of each Party.
Article
20
Confidentiality
1. Nothing in this Section shall be construed to
require any Party to furnish or allow access to confidential information, the
disclosure of which the Party considers would:
(a) be contrary to the public interest as
determined by its domestic laws and regulations;
(b) be contrary to any of its domestic laws and
reguiations, including but not limited to, those protecting personal privacy or
the financial affairs and accounts of individual customers of financial
institutions;
(c) impede law enforcement; or
(d) prejudice legitimate commercial interests,
which may include the competitive position of particular enterprises, public or
private.
2. Where a Party provides information to another
Party in accordance with this Section and designates the information as
confidential, the Party receiving the information shall maintain the
confidentiality of the information, use it only for the purposes specified by the
Party providing the information, and not disclose it without the specific
written permission of the Party providing the information.
CHAPTER
2
AMENDMENT TO THE AGREEMENT ON TRADE IN SERVICES
1. Pursuant to paragraph 3 of Article 23 of the TIS
Agreement, the third package of specific commitments of each Party, which shall
become an integral part of the TIS Agreement, is hereby annexed as ANNEX 2 to
this Protocol.
2. ANNEX 2 shall apply to the Parties that have
submitted their respective specific commitments to the Secretary-General of
ASEAN.
CHAPTER
3
AMENDMENT TO THE INVESTMENT AGREEMENT
Article
1
Promotion of Investment
Article 20 of the Investment Agreement shall be
substituted by:
“1. Each Party shall further cooperate in promoting
and increasing investment activities by building upon existing agreements or
arrangements already in place for economic cooperation in order to strengthen
the economic relationship among the Parties.
2. For the mutual benefit of the Parties, each
Party shall encourage and create favourable conditions for investors and their
investments.
3. The Parties shall cooperate in promoting and
increasing awareness of the Parties as an investment area, through, among
others:
(a) increasing investments among the Parties;
(b) organising investment promotion activities,
including business matching events;
(c) enhancing industrial complementation and
production networks;
(d) organising and supporting the organisation of
various briefings and seminars on investment opportunities and on investment
laws, regulations and policies; and
(e) conducting information exchanges on other
issues of mutual concern relating to investment promotion and facilitation.”
Article
2
Facilitation of Investment
Article 21 of the Investment Agreement shall be
substituted by:
“1. Each Party should endeavour to further create
stable, favourable and transparent conditions in order to encourage greater
investment by investors of another Party in its territory.
2. Subject to their laws and regulations, the Parties
shall cooperate to facilitate investments among the Parties through, among
others:
(a) creating the necessary environment for all
forms of investment;
(b) simplifying procedures for investment
applications and approvals;
(c) promoting dissemination of investment
information, including investment laws, rules, regulations, policies and
procedures; and
(d) utilising existing Investment Promotion
Agencies or, where necessary, establishing one-stop investment centres or
similar mechanisms in the respective host Parties, to provide assistance and
advisory services to the business sectors including facilitation of operating
licences and permits.”
CHAPTER
4
AMENDMENT OF PROVISIONS RELATING TO ECONOMIC AND
TECHNICAL COOPERATION UNDER THE FRAMEWORK AGREEMENT
Articles 2(g), 7 and 8(4) of the Framework
Agreement shall be deleted. Article 7 of the Framework Agreement shall read as
follows:
“Article
7(I)
Basic Principles
1. The Parties shall undertake economic and
technical cooperation activities of mutual benefit to deepen trade and
investment among the Parties with a view to promoting economic cooperation
pursuant to the Framework Agreement.
2. The Parties shall, subject to the availability
of resources and in accordance with their respective domestic laws and regulations,
endeavour to facilitate economic and technical cooperation among the Parties.
The Parties shall explore ways to expand economic and technical cooperation in
areas of mutual interest, including recommendations to enhance existing
economic and technical cooperation as well as develop new initiatives.
3. The Parties agree to implement capacity-building
programmes and technical assistance, particularly projects that are to address
the specific needs and requirements consistent with the priority areas of
economic and technical cooperation under the ACFTA. Special consideration shall
be provided to Cambodia, Lao PDR, Myanmar and Viet Nam with regard to their
participation in these projects and their proposed projects.
Article
7 (II)
Areas of Economic and Technical Cooperation
1. The Parties, on the basis of mutual benefit,
shall explore and undertake economic cooperation activities in the following
areas:
(a) Trade-related issues;
(b) Agriculture, Fishery, Forestry and Forestry
Products;
(c) Information and Communications Technology;
(d) Human Resource Development;
(e) Investment;
(f) Trade in Services;
(g) Tourism;
(h) Industrial Cooperation;
(i) Transport;
(j) Intellectual Property Rights;
(k) Small and Medium Enterprises;
(l) Environment; and
(m) Other fields related to economic and technical
cooperation as may be mutually agreed upon by the Parties.
2. The Parties agree to focus on the economic and
technical cooperation to support other Working Groups under the ACFTA-JC for
better utilisation of the Framework Agreement and agreements thereunder.
Article
7 (III)
Cross-border Electronic Commerce (E-commerce)
1. The Parties recognise the economic growth and
opportunity that e-commerce provides and the importance of promoting its use
and development.
2. The Parties agree to share information,
expertise and conduct dialogue on issues related to e-commerce, including laws
and regulations, rules and standards, and best practices with a view to
creating a favourable environment for e-commerce development.
3. The Parties shall encourage participation from
business communities and facilitation from government agencies to take
advantage of e-commerce platforms to enhance trade and investment relations
among the Parties.
4. The Parties shall encourage capacity-building
cooperation by supporting workshops and training programmes on e-commerce to
enhance the capability of Micro, Small and Medium Enterprises (MSMEs) to expand
into regional and international markets.
Article
7 (IV)
Resources for Economic and Technical Cooperation
Activities
1. With the aim of operationalising this Chapter,
activities could be in the form of economic and technical cooperation,
including seminars, trainings, policy dialogues, studies as well as other
activities agreed upon by the Parties.
2. The Parties agree to source the funding for
economic and technical cooperation activities under ACFTA from existing
appropriate ASEAN-China resources, or other resources available in the future.
3. The Parties agree to enhance economic and
technical cooperation activities under ACFTA by expediting the appraisal and
approval process, developing clear guidelines and facilitating enquiries on
economic and technical cooperation projects with a view to helping prospective
project proponents to better utilise the available resources.
Article
7 (V)
Implementation of Economic and Technical Cooperation
Activities
1. Economic and technical cooperation activities
shall involve China and at least two (2) ASEAN Member States, provided that
those activities are regional in nature and of benefit to ASEAN Member States
and China.
2. The Parties shall undertake economic and
technical cooperation activities at a mutually agreed time.
Article
7 (VI)
Settlement of Dispute
1. The Agreement on Dispute Settlement Mechanism of
the Framework Agreement shall not apply to this Chapter.
2. Any dispute concerning the interpretation,
implementation or application of this Chapter shall be settled amicably by the
Parties.
CHAPTER
5
FUTURE WORK PROGRAMME
1. Consistent with Article 17 of the TIG Agreement,
the Parties shall enter into negotiations, to further liberalise trade in goods
on a date to be mutually agreed upon by the Parties. The Parties shall
undertake to finalise the negotiations within two (2) years from the date of
commencement of the negotiations.
2. The Parties shall enter into negotiations on
Product Specific Rules (PSRs) with a view to reaching a mutually satisfactory
outcome that improves utilisation of ACFTA within one (1) year from the date of
entry into force of this Protocol.
3. The Parties shall conclude the discussions with
respect to investment liberalisation and protection within three (3) years from
the date of entry into force of this Protocol, unless the Parties agree
otherwise.
CHAPTER
6
FINAL PROVISIONS
Article
1
Amendment
This Protocol may be amended by agreement in
writing by the Parties and such amendment shall come into force on such date or
dates as may be agreed among the Parties.
Article
2
Depositary
For the ASEAN Member States, this Protocol shall be
deposited with the Secretary-General of ASEAN, who shall promptly furnish a
certified copy thereof to each ASEAN Member State.
Article
3
Entry Into Force
1. Each Party shall notify the Secretary-General of
ASEAN of the completion of its internal procedures2
necessary for entry into force of this Protocol in writing. This Protocol shall
enter into force on 1 May 2016, provided that China and at least one (1) ASEAN
Member State have notified the Secretary-General of ASEAN of the completion of
their internal procedures in writing.
2. If this Protocol does not enter into force on 1
May 2016, it shall enter into force sixty (60) days after the date by which
China and at least one (1) ASEAN Member State have notified the
Secretary-General of ASEAN of the completion of their internal procedures in
writing.
3. After the entry into force of this Protocol
pursuant to Paragraph 1 or 2, this Protocol shall enter into force for any
remaining Party sixty (60) days after the date of its notification to the
Secretary-General of ASEAN of the completion of its internal procedures in
writing.
IN WITNESS WHEREOF, the undersigned being
duly authorised by their respective Governments, have signed this Protocol.
DONE at Kuala Lumpur, Malaysia, this Twenty
First day of November in the Year Two Thousand and Fifteen, in duplicate copies
in the English language.3
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For Brunei Darussalam:
LIM JOCK SENG
Minister at Prime Minister’s
Office and Minister of Foreign
Affairs and Trade II
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For the People’s Republic of China
GAO HUCHENG
Minister of Commerce
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For the Kingdom of Cambodia:
SUN CHANTHOL
Senior Minister and Minister of Commerce
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For the Republic of Indonesia:
THOMAS TRIKASIH LEMBONG
Minister of Trade
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For the Lao People's Democratic Republic:
KHEMMANI PHOLSENA
Minister of Industry and Commerce
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For Malaysia:
MUSTAPA MOHAMED
Minister of International Trade and Industry
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For the Republic of the Union of Myanmar:
KAN ZAW
Union Minster for National Planning and Economic Development
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For the Republic of the Philippines:
GREGORY L. DOMINGO
Secretary of Trade and Industry
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For the Republic of Singapore:
VIVIAN BALAKRISHNAN
Minister for Foreign Affairs
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For the Kingdom of Thailand:
APIRADI TANRAPORN
Minister of Commerce
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For the Socialist Republic of Viet Nam:
VU HUY HOANG
Minister of Industry and Trade
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