On the ratification of the Agreement between the Government of the Republic of Kazakhstan and the Government of the Socialist Republic of Vietnam on the Promotion and Mutual Protection of Investments

Home / RLA / On the ratification of the Agreement between the Government of the Republic of Kazakhstan and the Government of the Socialist Republic of Vietnam on the Promotion and Mutual Protection of Investments

The Law of the Republic of Kazakhstan dated February 18, 2014 No. 174-V SAM

To ratify the Agreement between the Government of the Republic of Kazakhstan and the Government of the Socialist Republic of Vietnam on the Promotion and Mutual Protection of Investments, signed in Astana on September 15, 2009.

President of the Republic of Kazakhstan N. NAZARBAYEV

Agreement between the Government of the Republic of Kazakhstan and the Government of Of the Socialist Republic of Vietnam on the Promotion and Mutual Protection of Investments

(Entered into force on April 7, 2014 - Bulletin of International Treaties of the Republic of Kazakhstan 2014, No. 2, Article 14)

The Government of the Republic of Kazakhstan and the Government of the Socialist Republic of Vietnam (hereinafter referred to as the Contracting Parties), desiring to create favorable conditions for the development of mutual economic cooperation and, in particular, for investments by investors of one Contracting Party in the territory of the other Contracting Party; recognizing that the promotion and mutual protection of such investments will help stimulate business initiative and increase prosperity in the Contracting Parties; We have agreed on the following:

Article 1 Definitions

For the purposes of this Agreement: 1. The term "investments" means all types of assets invested by an investor of one Contracting Party in the territory of the other Contracting Party in accordance with the legislation of the State of the latter Contracting Party and includes assets consisting of or in the form of: a) participation interests, shares and other forms of participation in the authorized capital, as well as bonds, debentures and other forms of debt interests, other debts and loans, securities issued by any investor of the Contracting Party; b) monetary claims, claims for any other assets, claims for the performance of a contract having economic value; c) intellectual property rights, including copyrights, trademarks, patents, industrial designs, models and technical processes, know-how, trade secrets, trade names and goodwill; d) any rights, in accordance with national legislation, contract, or by virtue of licenses or permits issued in accordance with national legislation, including rights to explore, develop, extract, and use natural resources; e) any other tangible and intangible, movable and immovable property, as well as any related property rights, such as the right to lease, mortgage, pledge and surety. However, the term "investment" does not mean monetary claims arising solely from: (f) commercial contracts for the sale of goods and services by a resident or enterprise in the territory of one Party to an enterprise in the territory of the other Contracting Party; or (g) the provision of credit in connection with a commercial transaction, such as trade finance; or (h) other monetary claims that do not include the assets set forth in subparagraphs (a) to (e) of this paragraph. Any changes in the form of investment or reinvestment of assets or rights do not affect their nature as investments, provided that such changes are made in accordance with the national legislation and regulations of the receiving Contracting Party. 2. The term "investor" in relation to a Contracting Party means: (a) An individual who holds the nationality of that Contracting Party in accordance with its applicable national legislation; b) a legal entity established in accordance with the national laws and regulations of that Contracting Party, such as a corporation, partnership, trust, society, association or enterprise. 3. The term "profit" means profit from investments, regardless of the form in which they are paid and includes, but is not limited to, revenue, interest, capital gains, dividends, royalties, as well as management, technical assistance and other payments or contributions and payments in kind, regardless of its type. 4. The term "territory" means: a) with respect to the Republic of Kazakhstan - territorial lands, internal waters, territorial waters (sea) and the airspace above them, the marine zone beyond the territorial waters (seas), including the seabed and its subsoil, over which the Republic of Kazakhstan exercises sovereignty, sovereign rights and jurisdiction in accordance with national legislation and international law; (b) With respect to the Socialist Republic of Vietnam - territorial lands, islands, internal waters, the territorial sea and the airspace above them, the maritime zone beyond the territorial sea, including the seabed and its subsoil, over which the Socialist Republic of Vietnam exercises sovereignty, sovereign rights and jurisdiction in accordance with national and international law. 5. The term "freely convertible currency" means a currency designated from time to time by the International Monetary Fund as a freely usable currency in accordance with the articles of Agreement of the International Monetary Fund and its amendments. 6. The term "State objectives" is used in accordance with the national legislation of each of the Contracting Parties.

Article 2 Scope of application

1. This Agreement applies to investments made by investors of one Contracting Party in the territory of the other Contracting Party after the entry into force of this Agreement and which comply with the national legislation of the receiving Contracting Party. 2. This Agreement does not apply to investment disputes arising from actions that have already occurred or investment disputes that have already been settled or that were already the subject of judicial or arbitration proceedings prior to the entry into force of this Agreement. 3. This Agreement does not apply to: (a) taxation; (b) public procurement; (c) subsidies or grants issued by a Contracting Party; and (d) services provided for the performance of public functions by the relevant authority or agency of a Contracting Party. For the purposes of this Agreement, services provided for the performance of government functions means any service that is not provided on a commercial basis or in competition with one or more service providers.

Article 3 Investment promotion and protection

1. Each Contracting Party shall encourage and create favorable conditions in the territory of its State for investments by investors of the State of the other Contracting Party and recognize such investments in accordance with the national legislation of its State. 2. Investments of investors of each of the Contracting Parties shall always have fair and equitable treatment and enjoy full protection and security in the territory of the other Contracting Party. None of the Contracting Parties in its territory prevents investors of the other Contracting Party from managing, maintaining, using or disposing of their investments through unjustified or discriminatory measures or in any other way.

Article 4 Investment regime

1. Each Contracting Party, with respect to the use, management, operation, sale or any other disposal of investments made in the territory of one Contracting Party by investors of the other Contracting Party, shall grant a regime no less favorable than that applied in the same situations to investments by investors of any third State. 2. The provisions of this Article do not oblige one of the Contracting Parties to extend treatment, preferences or privileges to investors of the other Contracting Party as a result of: a) any customs union, economic union, free trade area, monetary union or other forms of regional and bilateral economic agreement, as well as other similar international agreements to which any of the Contracting Parties is or may become one of the Parties; (b) Any international, regional or bilateral agreements or other similar arrangements, or any domestic regulations relating wholly or mainly to taxation.

Article 5 Compensation of losses

If investments made by an investor of one of the Contracting Parties incur losses as a result of war, armed conflict, state of emergency, uprising, civil unrest, rebellion, riots or other similar situations in the territory of the other Contracting Party, then with respect to restitution, compensation, compensation or other forms of compensation, the receiving Contracting Party shall ensure a regime no less favorable what does it provide to its own investors or to investors of any third country, depending on, which regime is more favorable for investors.

Article 6 Expropriation

1. Investments of investors of the State of one Contracting Party shall not be expropriated, nationalized or otherwise subjected to any measures having the effect of nationalization or expropriation (hereinafter referred to as expropriation) in the territory of the State of the other Contracting Party, except for measures taken for state purposes on a non-discriminatory basis in accordance with national legislation and with immediate, adequate and effective compensation. 2. Compensation should be equal to the market value of the expropriated investments on the date preceding the date of expropriation, or before the expropriation became generally known, whichever occurred earlier. Such compensation should include interest at the commercial rate established on a market basis from the date of expropriation until the payment date. Compensation must be fully realizable and freely transferable without limitation or unnecessary delay. 3. Regardless of the provisions of paragraphs 1 and 2, any measures related to the expropriation of land and related to the expropriation itself and the payment of compensation must comply with the national legislation and regulations of the Contracting Party receiving the investment. 4. Investors of one Contracting Party who have suffered from expropriation have the right to have their case promptly reviewed by a judicial or other independent body of the other Contracting Party, as well as to evaluate their investments in accordance with the principles set out in this article and the national legislation of the expropriating Contracting Party. 5. In cases where a Contracting Party expropriates the assets of a company that is established in accordance with its national legislation, and in which shares, shares, bonds or other forms of participation of an investor or investors of another Contracting Party are registered, the provisions of this article shall apply to shares, the share of participation of such investors in this company.

Article 7 Transfer of investment-related payments

1. Each Contracting Party, subject to compliance with its national legislation, guarantees investors of the other Contracting Party the free transfer to and from its territory of payments related to investments, including transfers: a) the authorized capital and additional funds for the maintenance, management and development of investments; b) profits; c) payments under the contract, including depreciation of the principal debt and accrued interest payable, in accordance with the loan agreement; (d) Royalties and payments for the rights referred to in subparagraph (c) paragraph 1 of article 1; (e) Income from the sale or liquidation of all or any part of investments; (f) Income and other remuneration of personnel attracted from abroad in connection with investments; (g) Compensation payments in accordance with articles 5 and 6; (h) payments related to dispute resolution. 2. Each Contracting Party shall ensure that the transfers referred to in paragraph 1 of this Article are carried out in freely convertible currency at the market exchange rate of the Contracting Party in whose territory the investments are made effective on the day of the transfer. 3. Notwithstanding the provisions of paragraphs 1 and 2, one Contracting Party may prevent or restrict translation on the basis of the equal, non-discriminatory and fair application of its national legislation and regulations concerning: a) bankruptcy, insolvency or protection of creditors' rights; b) issuance, trading or transactions in securities, futures, options or derivative financial instruments; c) criminal or criminal offenses and the return of proceeds from crime; (d) Financial reporting and cash flow accounting as necessary to assist law enforcement and financial control authorities; (e) Enforcement of orders or decisions in judicial or administrative proceedings; (f) Taxation; (g) Social security, State pension provision or mandatory savings contributions; (h) severance payments to employees.

Article 8 Subrogation

1. If a Contracting Party or its authorized body (the Reimbursing Party) makes payments in accordance with the obligation of compensation or guarantee that it has assumed in respect of investments in the territory of the other Contracting Party (the Receiving Party), the Receiving Party recognizes: a) the transfer to the Reimbursing Party of all rights and claims arising from such investments, in accordance with with the national legislation and the legal transaction of the Receiving party; b) the right of the Reimbursing Party to exercise all these rights and recover claims, as well as to assume all obligations related to investments by virtue of subrogation. 2. The reimbursing party, in all circumstances, has the right to be granted the same treatment in respect of: (a) The rights and existing claims, as well as the obligations assumed by that Contracting Party by virtue of the transfer of rights referred to in paragraph 1 of this Article; (b) Any payments received in accordance with these rights and claims, to the exact extent that such rights and claims were granted to the original investor by virtue of this Agreement in respect of said investments.

Article 9 Settlement of disputes between a Contracting Party and an investor

1. Any legal disputes arising directly from investments between a Contracting Party and an investor of the other Contracting Party in respect of alleged violations of obligations by that investor under this Agreement related to the management, management, operation, sale or other disposal of the investor's investments and which cause losses or harm to the investments should be resolved peacefully as far as possible. through negotiations between the parties to the dispute. 2. If such a dispute cannot be settled within 6 (six) months after the date of the investor's written notification to the Contracting Party, the dispute may be referred to the: a) the competent court of the Contracting Party in whose territory the investments were made; (b) The International Center for Settlement of Investment Disputes (hereinafter referred to as the Center), established in accordance with the Convention on the Settlement of Investment Disputes between States and Natural or Legal Persons of Other States, done in Washington on March 18, 1965 (hereinafter referred to as the Washington Convention), subject to the participation of both Contracting Parties in the said Convention; or (c) Arbitration according to the Center's Additional Services, if only one of the Contracting Parties is a party to the Washington Convention; or (d) An ad Hoc arbitral tribunal, which, unless otherwise provided by the parties to the dispute, must be established in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). After the investor has submitted a dispute in accordance with any of the procedures provided above, such a choice is final. For the purposes of concretization, the provisions of this Most-favored-nation Agreement do not include the extension to investors of the other Contracting Party of dispute settlement procedures other than those set forth in this Agreement. 3. The submission of a dispute to arbitration in accordance with paragraph 2 is conditional on the submission of such dispute to arbitration within two (2) years. years from the moment when the investor became aware or objectively should become aware of the violation of obligations under this Agreement, as well as of the loss or damage suffered by the investor or caused to investments. 4. The arbitral tribunal shall make its decisions in accordance with the provisions of this agreement, the national legislation and rules of the Contracting Party involved in the dispute and in whose territory the investments were made (including rules on conflict of law), any special agreement concluded with respect to investments and the relevant principles of international law. 5. Neither Contracting Party has the right to make a counter-appeal for defensive purposes at any stage of the arbitration proceedings, or during the execution of the award, and indicate that the investor of the other Contracting Party has received or will receive, in accordance with the insurance or guarantee agreement, compensation or other compensation in respect of all or part of any alleged losses. 6. Any award made in accordance with this article is final and binding on both parties to the dispute and must be enforced in accordance with the national legislation of the State of the Contracting Party in whose territory the award is being enforced.

Article 10 Settlement of disputes between the Contracting Parties

1. The Contracting Parties shall resolve, as far as possible, any dispute concerning the interpretation or application of this Agreement through consultations or through diplomatic channels. 2. If the dispute has not been settled within six months after the date of sending through diplomatic channels a written request from one of the Contracting Parties to initiate consultations, then, unless the Contracting Parties have agreed otherwise in writing, either Contracting Party may, by written notification through diplomatic channels of the other Contracting Party, submit the dispute to a special arbitration court. in accordance with the following provisions of this article. 3. The arbitral tribunal is formed as follows: each Contracting Party appoints one member, and these two members agree on the Chairman of the arbitral tribunal, who must be a citizen of a third State, and who is appointed by both Contracting Parties. Two members must be appointed within two months and the Chairman within four months from the date of receipt of a written notification from one of the Contracting Parties of the intention of the other Contracting Party to submit the dispute to a special arbitration court. 4. If the time limits specified in paragraph 3 have not been met, any Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make the necessary appointments. If the President of the International Court of Justice is a national of one of the Contracting Parties or if he is in any way unable to perform these functions, the Vice-President of the International Court of Justice is invited to make the necessary appointments. If the Vice-President of the International Court of Justice is a national of one of the Contracting Parties or if he is also unable to perform these functions, the next ex officio member of the International Court of Justice, who is not a national of either Contracting Party, is invited to make the necessary appointments. 5. The Arbitration Court shall make its decisions by a majority vote. Such a decision must be made in accordance with this Agreement, recognized norms of international law that may be applicable, and must be final and binding on both Contracting Parties. Each Contracting Party must bear the costs of a member of the arbitral tribunal appointed by it, as well as the representation costs in the arbitration proceedings. The expenses of the Chairman, as well as any other expenses related to the arbitration, shall be borne equally by both Contracting Parties. However, the arbitral tribunal may, at its discretion, determine the shares for each of the Contracting Parties. In all other respects, the arbitral tribunal determines its own procedures.

Article 11 Entry into force

This Agreement shall enter into force upon the expiration of 30 (thirty) days from the date of receipt through diplomatic channels of the last written notification on the completion by the Contracting Parties of the internal procedures necessary for its entry into force.

Article 12 Period of validity and termination

1. This Agreement is concluded for a period of 10 (ten) years, after which it is automatically extended indefinitely. 2. Any Contracting Party may terminate this Agreement upon the expiration of 10 (ten) years from the date of entry into force of this Agreement. The Agreement will terminate upon the expiration of one year from the date of receipt by one Contracting Party through diplomatic channels of a written notification by the other Contracting Party of its intention to do so. 3. With respect to investments made prior to the date of termination of this Agreement, the provisions of all other articles of this Agreement shall remain in force for a period of 10 (ten) years from the date of termination.

In witness whereof, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement. Done in Astana on September 15, 2009, in two originals, each in the Kazakh, Vietnamese, Russian and English languages, all texts being equally authentic. In case of disputes in the application and interpretation of the provisions of this Agreement, the Contracting Parties will refer to the English text.

For the Government For the Government of the Republic of Kazakhstan Socialist Republic of Vietnam

RCPI's note! The following is the text of the Agreement in English and Vietnamese.

President

Republic of Kazakhstan

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