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12936 Vietnam - Agreement Regarding the Operations of the Overseas Private Investment Corporation in Vietnam


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12936

 

 

INVESTMENT GUARANTIES

 

 

 

 

Agreement Between the
UNITED STATES OF AMERICA
and VIETNAM

 

Signed at Washington and Hanoi
March 19 and 26, 1998

 

 

 

 

 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”

 

VIETNAM

Investment Guaranties

Agreement signed at Washington and Hanoi March 19 and 26, 1998;
Entered into force March 26, 1998.


AGREEMENT
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
REGARDING THE OPERATIONS OF
THE OVERSEAS PRIVATE INVESTMENT CORPORATION IN
VIETNAM
THE GOVERNMENT OF THE UNITED STATES OF AMERICA and THE GOVERNMENT OF
THE SOCIALIST REPUBLIC OF VIETNAM;
REAFFIRMING their common desire to establish and develop mutually beneficial and
equitable investment cooperation between the two countries on the basis of mutual respect; and
RECOGNIZING that this objective can be promoted through investment support provided by
the Overseas Private Investment Corporation ("OPIC"), a development institution and an agency
of the United States of America, in the form of investment insurance and reinsurance, debt and
equity investments and investment guaranties;
HAVE HEREBY AGREED as follows:
ARTICLE 1
As used in this Agreement, the following terms have the meanings herein provided. The
term "Investment Support" refers to any debt investment, any equity investment provided to
encourage or support an investment made by a non-governmental investor from the United States
of America, any investment guaranty, and any investment insurance or reinsurance which is
provided by the Issuer in connection with a project in the territory of the Socialist Republic of
Vietnam. The term "Issuer" refers to OPIC and any successor agency of the United States of
America, and any agent of either, to the extent such agent is acting within the scope of authority
delegated by OPIC or any such successor. The term "Taxes" means all present and future taxes
-2-
and tax-like obligations imposed by the Government of the Socialist Republic of Vietnam and all
liabilities with respect thereto.
ARTICLE 2
(a) The Issuer shall not be subject to the regulatory laws of the Socialist Republic of
Vietnam specifically applicable to insurance or financial organizations. Except to the extent
otherwise provided in this Agreement, the operations of the Issuer in Vietnam shall be subject to
appropriate Vietnamese law and applicable international law.
(b) As the Issuer is a government agency acting for the purpose of encouragement and
support of investors, all operations and activities undertaken by the Issuer in connection with any
Investment Support, and all payments, whether of interest, principal, fees, dividends, premiums,
or the proceeds from the liquidation of assets or of any other nature, that are made, received or
guaranteed by the Issuer in connection with any Investment Support shall be exempt from Taxes.
The Issuer shall not be subject to any Taxes in connection with any transfer, succession or other
acquisition which occurs pursuant to paragraph (c) of this Article or Article 3(a) hereof. Any
project in connection with which Investment Support has been provided shall be subject to
applicable Vietnamese taxes, including in the case of liquidation, but shall be accorded tax
treatment no less favorable than that accorded to similar projects benefiting from the investment
support programs of any other national or multilateral development institution which operates in
Vietnam.
(c) If the Issuer makes a payment to any person or entity, or exercises its rights as a
creditor or subrogee, in connection with any Investment Support, the Government of the Socialist
Republic of Vietnam shall recognize the transfer to, or acquisition by, the Issuer of any cash,
accounts, credits, instruments or other assets in connection with such payment or the exercise of
such rights, as well as the succession of the Issuer to any right, title, claim, privilege or cause of
action existing, or which may arise, in connection therewith.
(d) With respect to any interests transferred to the Issuer or any interests to which the
Issuer succeeds under this Article, the Issuer shall assert no greater rights than those of the person
or entity from whom such interests were received, provided that nothing in this Agreement shall
limit the right of the Government of the United States of America to assert a claim under
international law in its sovereign capacity, as distinct from any rights it may have as the Issuer
pursuant to paragraph (c) of this Article.
- 3 -
ARTICLE 3
(a) Amounts in the currency of the Socialist Republic of Vietnam, including cash,
accounts, credits, instruments or otherwise, acquired by the Issuer upon making a payment, or
upon the exercise of its rights as a creditor, in connection with any Investment Support provided
by the Issuer for a project in Vietnam, shall be accorded treatment in the territory of the Socialist
Republic of Vietnam no less favorable as to use and conversion than the treatment to which such
funds would have been entitled in the hands of the person or entity from which the Issuer
acquired such amounts.
(b) Such currency and credits may be transferred by the Issuer to any person or entity
and upon such transfer shall be freely available for use by such person or entity in the territory of
the Socialist Republic of Vietnam in accordance with its laws.
ARTICLE 4
(a) Any dispute between the Government of the United States of America and the
Government of the Socialist Republic of Vietnam regarding the interpretation of this Agreement
or which, in the opinion of either party hereto, presents a question of international law arising out
of any project or activity for which Investment Support has been provided shall be resolved,
insofar as possible, through negotiations between the two Governments. If, six months following
a request for negotiations hereunder, the two Governments have not resolved the dispute, the
dispute, including the question of whether such dispute presents a question of international law,
shall be submitted, at the initiative of either Government, to an arbitral tribunal for resolution in
accordance with paragraph (b) of this Article.
(b) The arbitral tribunal referred to in paragraph (a) of this Article shall be established
and shall function as follows:
(i) Each Government shall appoint one arbitrator. These two arbitrators shall
by agreement designate a president of the tribunal who shall be a citizen of a third state
and whose appointment shall be subject to acceptance by the two Governments. The
arbitrators shall be appointed within three months, and the president within six months, of
the date of receipt of either Government's request for arbitration. If the appointments are
not made within the foregoing time limits, either Government may, in the absence of any
other agreement, request the Secretary-General of the International Centre for the
Settlement of Investment Disputes to make the necessary appointment or appointments.
Both Governments hereby agree to accept such appointment or appointments.
- 4 -
(ii) Decisions of the arbitral tribunal shall be made by majority vote and shall
be based on the applicable principles and rules of international law. Its decision shall be
final and binding.
(iii) During the proceedings, each Government shall bear the expense of its
arbitrator and of its representation in the proceedings before the tribunal, whereas the
expenses of the president and other costs of the arbitration shall be paid in equal parts by
the two Governments. In its award, the arbitral tribunal may reallocate expenses and
costs between the two Governments.
(iv) In all other matters, the arbitral tribunal shall regulate its own procedures.
ARTICLE 5
(a) This Agreement shall enter into force from the date of the second signature set
forth below.
(b) This Agreement shall continue in force until six months from the date of a receipt
of a note by which one Government informs the other of an intent to terminate this Agreement.
In such event, the provisions of this Agreement shall, with respect to Investment Support
provided while this Agreement was in force, remain in force so long as such Investment Support
remains outstanding, but in no case longer than twenty years after the termination of this
Agreement.
IN WITNESS WHEREOF, the undersigned, duly authorized by their respective
Governments, have signed this Agreement.
DONE on behalf of the Government of the United States of America in Washington on the
19th day of March, 1998; and
DONE on behalf of the Government of the Socialist Republic of Vietnam in Hanoi on the
26th day of March, 1998.
- 5 -
This Agreement is made in duplicate, in the English and Vietnamese languages, both
texts being equally authentic.
FOR THE GOVERNMENT OF
THE UNITED STATES OF AMERICA
FOR THE GOVERNMENT OF
THE SOCIALIST REPUBLIC OF
VIETNAM



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