CPTPP is a new-generation FTA covering many aspects in addition
to the traditional areas such as trade of goods, services. Non-traditional
areas such as labor, environment, intellectual property, etc. all have
significant commitments and are specified in each chapter. Enterprises of state
member must meet certain conditions applicable to each area to enjoy respective
benefits. As for foreign investment, the host country has the right to refuse
to apply benefits to foreign investors or its investment if they do not meet
the requirements of the CPTPP.
For avoidance of doubt, investment means every asset that an
investor owns or controls, directly or indirectly, that has the characteristics
of an investment, including such characteristics as the commitment of capital
or other resources, the expectation of gain or profit, or the assumption of
risk. Forms that an investment may take include: enterprise, forms of equity
participation in an enterprise, debt instruments and loans, intellectual
property rights, etc. Requirements for enjoying foreign investment benefits are
provided indirectly in the way of permitting State Members deny of benefits
under some circumstances as stipulated in Article 9.15:
“Article 9.15: Denial of Benefits
1.A Party may deny the benefits of this Chapter to an investor
of another Party that is an enterprise of that other Party and to investments
of that investor if the enterprise:
(a) is owned or controlled by a person of a non-Party or of the
denying Party; and
(b) has no substantial business activities in the territory of
any Party other than the denying Party.
2.A Party may deny the benefits of this Chapter to an investor
of another Party that is an enterprise of that other Party and to investments
of that investor if persons of a non-Party own or control the enterprise and
the denying Party adopts or maintains measures with respect to the non-Party or
a person of the non-Party that prohibit transactions with the enterprise or
that would be violated or circumvented if the benefits of this Chapter were
accorded to the enterprise or to its investments.”
Most commitments in the Investment Chapter apply to only
investors and its investment that come from CPTPP Member States. However,
Vietnam may deny the benefits to an investor of State Member that is an
enterprise and to investments of that investor if the enterprise:
-Is owned or controlled by an individual or enterprise of a Non-
State Member.
-Is owned or controlled by an individual or enterprise of
Vietnam.
-Has no substantial business activities in the territory of any
State Member other than Vietnam.
By the above permitted denial, the CPTPP applies investment
benefits selectively, restricts individual or enterprise of a Non-State Member
to taking advantage of benefits from CPTPP. When performing investment
licensing procedures in Vietnam, foreign enterprises that come from State
Member must present internal documents indicating the owner or controller to
demonstrate that their business is out of permitted denial. Besides, these
investors must have substantial business activities in the territory of any
State Member other than Vietnam. It is necessary to wait for more guidance from
the competent state authorities on implementation of CPTPP.
The CPTPP Agreement restricts
investment under its protection. CPTPP protects investment which is in its
territory of an investor of CPTPP State Member in existence as of the date of
entry into force of CPTPP for those State Members or established, acquired, or
expanded thereafter. Therefore, the investments ended or terminated prior to
the effective date of CPTPP in Vietnam and host country will not gain the benefits
under CPTPP.
In the meantime, the investor could also challenge the denial
decision of the host country through the dispute settlement mechanism between
investor and state (ISDS).
Vietnam has ratified the Comprehensive and Progressive Agreement
for Trans-Pacific Partnership – CPTPP on Jan 14th, 2019. This Agreement include
11 countries New Zealand, Canada, Japan, Mexico, Singapore, Brunei, Chile,
Malaysia, Peru, Australia and Vietnam.
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