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13076 Vietnam - Project Incentive Agreement Regarding the Operations of the Export-Import Bank of the United States in Vietnam


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13076

 

 

FINANCE

 

 

 

 

Agreement Between the
UNITED STATES OF AMERICA
and VIETNAM

 


Signed at Hanoi December 9, 1999

 

 

 


 

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

Finance

Agreement signed at Hanoi December 9, 1999;
Entered into force December 9, 1999.

-1-
PROJECT INCENTIVE AGREEMENT
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
REGARDING THE OPERATIONS OF
THE EXPORT-IMPORT BANK OF THE UNITED STATES IN
VIETNAM
THE GOVERNMENT OF THE UNITED STATES OF AMERICA and THE GOVERNMENT
OF THE SOCIALIST REPUBLIC OF VIETNAM;
AFFIRMING their common desire to establish and develop mutually beneficial and
equitable trade and investment cooperation on the basis of mutual respect; and
RECOGNIZING that this objective can be promoted through financing provided or
supported by the Export-Import Bank of the United States ("Ex-Im Bank"), a financial
institution and an agency of the United States of America, in the form of loans,
guarantees, and credit insurance in support of the export of goods and services of United
States origin;
HAVE HEREBY AGREED as follows:
ARTICLE 1
As used in this Agreement, the following terms have the meanings herein provided.
The term "Financing" refers to any loan, loan guaranty or credit insurance, including
guarantees or insurance against political risks, that may be provided by the Issuer in
connection with a project or other transaction in the territory of Vietnam. The term
"Issuer" refers to Ex-Im Bank and any successor agency of the United States of America.
The term "Taxes" means all present and future taxes and tax-like obligations imposed by
the Government of the Socialist Republic of Vietnam and all liabilities with respect
thereto.
-2-
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 or in other agreements between
the Governments of the United States and the Socialist Republic of Vietnam, 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 trade
promotion and encouragement and support of investors, all operations and activities
undertaken by the Issuer in connection with any Financing, 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 Financing 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 Financing 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 benefitting from the trade or
investment finance programs of any other national or multilateral trade or 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 Financing, 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.
(e) Recognizing that Financing will normally be in the form of, or in support of,
debt investments denominated in currencies other than that of the Socialist Republic of
Vietnam, all approvals issued by the Government of the Socialist Republic of Vietnam, or any
agency or instrumentality thereof, for the establishment and use of accounts in financial
institutions outside of Vietnam for the purpose of accumulating foreign currency reserves and
making operating expense and debt service payments by a project that has received Financing
shall be irrevocable and remain in full force and effect for the given period of the license (i.e.,
until the expiration of the repayment period) or so long as such Financing remains outstanding
except where such account is used for purposes other than those specified in the license.
-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 Financing
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
Neither the Government of the Socialist Republic of Vietnam nor any agency or
instrumentality thereof will either: (i) terminate, or prevent the exercise or enforcement
of, legal rights underlying any Financing, including without limitation, enforcement of
debt obligations in connection with Financing and collateral security arrangements
established to support such debt obligations; or (ii) take or permit to be taken any action
that (x) prevents the legal operation of a project receiving Financing or (y) constitutes or
results in the confiscation or expropriation of all or any material portion of the property of
such a project. If, however, the Government of the Socialist Republic of Vietnam, or any
agency or instrumentality thereof, should nonetheless, with respect to any project that has
received Financing, take, or permit to be taken, any such action as is described in the
preceding sentence, the Government of the Socialist Republic of Vietnam hereby agrees to
be deemed to have guaranteed, with its full faith and credit, repayment of the debt
obligations outstanding in connection with such Financing for such project.
ARTICLE 5
(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 Financing 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.
-4-
(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.
(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 6
(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
Financing provided while this Agreement was in force, remain in force so long as such
Financing 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.
- 5 -
DONE on behalf of the Government of the United States of America in Hanoi on
the 9th day of December, 1999; and
DONE on behalf of the Government of the Socialist Republic of Vietnam in Hanoi
on the 9th day of December, 1999.
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
Jackie M. Clegg
Vice Chair
Export-Import Bank
of the United States
Duong Thu Huong
Deputy Governor
State Bank of Vietnam



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