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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 481-TTg
Hanoi, September 08, 1994
DECISION
ON THE ORGANIZATION AND CAMPAIGNING FOR THE USE OF IODIZED SALT BY THE WHOLE POPULATION
THE PRIME MINISTER
Pursuant to the Law on Organization of the Government on the 9th of September, 1992; In order to eradicate goiter and cretinism, and contribute to improving the people's intellectual standard and socio-economic development; At the proposal of the Ministry of Health;
DECIDES:
Article 1. - Iodized salt is considered a medicine to prevent goiter and cretinism and other diseases caused by iodine deficiency. Therefore, the Government decides to launch a campaign and organize for the consumption of iodized salt among the entire population as from 1995.
Article 2. - To entrust the Ministry of Trade with organizing the production and supply of iodized salt on the national scale according to the following regulations:
a/ Iodized salt must be produced according to the prescribed criteria, must ensure hygiene during its production, transportation, storing and packaging, according to the prescriptions of the Ministry of Health. Each bag of iodized salt must have a label specifying the place of production, the date of production and the price.
The Ministry of Health shall issue permits for the production of iodized salt, supervise its production, and closely control its quality.
b/ The Government shall supply iodized salt free of charge to the population in the difficult highland areas, and partly subsidize the price of iodized salt to the population in a number of difficult mountainous areas.
The Committee for Nationalities and Mountainous Regions shall cooperate with the Ministry of Health and the People's Committees in the concerned provinces in drawing up the list of difficult highland districts and communes to be supplied with iodized salt free of charge, and the difficult mountainous districts and communes to be partly subsidized in the sale of idolized salt.
The Ministry of Health shall be the sponsor and, together with the Ministry of Trade and the Ministry of Finance, discuss the concrete level of price subsidy to submit to the Prime Minister for decision.
Article 3. - The Ministry of Health shall be the sponsor of the National Program Against Goiter. It has the responsibility to draw up the plan, approve the expenditures, and control the use of the State budget devoted to this Program. The Ministry of Health shall discuss with the Ministry of Trade and the Ministry of Finance the mechanism for the use and management of the fund devoted to this Program, and submit it to the Prime Minister.
Article 4. - The Ministry of Health, the Ministry of Education and Training, the Ministry of Culture and Information, and the local People's Committees have the responsibility to educate the population in the whole country about the benefit of consuming iodized salt, and to carry out the program of consumption of iodized salt throughout the country right at the beginning of 1995.
The Government asks the Vietnam Fatherland Front, the mass and social organizations, and the mass media to collaborate with the administration at all levels to motivate the entire population to consume iodized salt.
Article 5. - This Decision takes effect as from the date of its promulgation.
Article 6. - The ministers, the heads of ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and cities directly under the Central Government have the responsibility to organize and direct the implementation of this Decision.
PRIME MINISTER Vo Van Kiet
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481-TTg
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Quyết định
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Thủ tướng Chính phủ
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Võ Văn Kiệt
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08/09/1994
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08/09/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRIME MINISTER OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 480-TTg
Hanoi, September 07, 1994
DECISION
ON THE CREATION OF THE DEPARTMENT FOR ASEAN
THE GOVERNMENT
Pursuant to the Law on Organization of the Government on the 30th of September, 1992; Pursuant to Decree No. 15-CP on the 2nd of March, 1993 of the Government on the tasks, powers and State management responsibilities of the ministries and ministerial level agencies; Pursuant to Decree No. 82-CP on the 10th of November, 1993 of the Government on the tasks, powers and organization of the apparatus of the Ministry for Foreign Affairs; At the proposals of the Minister for Foreign Affairs and the Minister-Chairman of the Government Commission on Organization and Personnel.
DECIDES:
Article 1. - To set up the Department for ASEAN directly under the Ministry for Foreign Affairs.
The Department for ASEAN has the function of a consultancy agency for the Ministry for Foreign Affairs concerning the undertakings, policies and measures of handling questions in the relations between Vietnam and the ASEAN organization; helping the Minister for Foreign Affairs in the coordination of activities of the Ministry and the various services, levels and organizations of Vietnam in their relations and cooperation with the ASEAN organization.
Article 2. - The Minister for Foreign Affairs shall make detailed provisions on the tasks, powers, organization and personnel of the Department for ASEAN in the total personnel under his management assigned by the State.
Article 3. - This Decision takes effect as from the date of its issuance. The Minister for Foreign Affairs, the Minister-Chairman of the Government Commission on Organization and Personnel shall have to implement this Decision.
PRIME MINISTER Vo Van Kiet
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480-TTg
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Quyết định
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Thủ tướng Chính phủ
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Võ Văn Kiệt
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07/09/1994
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07/09/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
| null |
AGREEMENT
BETWEEN THE SOCIALIST REPUBLIC OF VIETNAM AND THE REPUBLIC OF INDIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Socialist Republic of Vietnam and the Government of the Republic of India,
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
Article 1. PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprise.
3. The existing taxes to which the Agreement shall apply are:
a. in Vietnam:
(i) the personal income tax;
(ii) the profit tax; and
(iii) the profit remittance tax;
(hereinafter referred to as "Vietnamese tax").
b. in India:
the income tax including any surcharge thereon;
(hereinafter referred to as "Indian tax");
4. The Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement, in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of substantial changes which have been made in their respective taxation laws.
Article 3. GENERAL DEFINITIONS
1. In this Agreement, unless the context otherwise requires:
a. the term "Vietnam" means the Socialist Republic of Vietnam; when used in a geographical sense, it means all its national territory, including its territorial sea and any area beyond and adjacent to its territorial sea, within which Vietnam, by Vietnamese legislation and in accordance with international law, has sovereign rights of exploration for and exploitation of natural resources of the sea bed and its sub-soil and superjacent watermass;
b. the term "India" means the territory of India and includes the territorial sea and airspace above it, as well as any other maritime zone in which India has sovereign rights, other rights and jurisdictions according to the Indian law and in accordance with international law or the U.N Convention on the Law of the Sea;
c. the terms "a Contracting State" and "the other Contracting State" mean India or Vietnam as the context requires;
d. the term "company" means any body corporate or any entity which is treated as a company or body corporate under the taxation law in force in the respective Contracting States;
e. the term "competent authority" means:
(i) in the case of Vietnam, the Minister of Finance or his authorized representative; and
(ii) in the case of India, the Central Government in the Ministry of Finance (Department of Revenue) or their authorized representative;
f. the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
g. the term "fiscal year" means:
(i) in the case of Vietnam, the accounting year comprising of a twelve-month period; and
(ii) in the case of India, "previous year" as defined under section 3 of the Income-tax Act, 1961;
h. the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
i. the term "national" means any individual, possessing the nationality of a Contracting State and any legal person, partnership or association deriving its status from the laws in force in the Contracting State;
j. the term "person" includes an individual, a company, a body of persons and any other entity which is treated as a taxable unit under the taxation laws in force in the respective Contracting States;
k. the term "tax" means Vietnamese tax or Indian tax, as the context requires, but shall not include any amount which is payable in respect of any default or omission in relation to the taxes to which this Agreement applies or which represents a penalty imposed relating to those taxes.
2. As regards the application of the Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the Agreement applies.
Article 4. RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State if liable to tax therein by reason of his domicile, residence, place of management, place of registration or any other criterion of a similar nature.
2. Where by reason of the provisions of paragraph 1, an individual is a resident of both Contracting States, then his status shall be determined as follows:
a. he shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
b. if the State in which he has his centre of vital interests cannot be determined, or if he has no premanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
c. if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
d. if he a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated.
Article 5. PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business throught which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop;
f. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
g. a warchouse, in relation to a person providing storage facilities for others; and
h. a building site or construction or assembly project or supervisory activities in connection therewith; but only where such site, project or activity continues for a period of more than six months.
3. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a. the use of facilities solely for the purpose of storage, display or occasional delivery of goods or merchandise belonging to the enterprise;
b. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or occasional delivery;
c. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d. the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information for the enterprise;
e. the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character.
4. Notwithstanding the provisions of paragraphs 1 and 2, where a person-other than an agent of an independent status to whom paragraph 5 applies-is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person:
a. has and habitually exercises in that State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to those mentioned in paragraph 3 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph; or
b. has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise.
5. An enterprise of a Contracting State shall not be deemed to have a permanent establishmend in the other Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, he will not be considered an agent of an independent status within the meaning of this paragraph.
6. The fact that a company which is resident of a Contracting State control or is controlled by a company which is a resident of the other Contracting State or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6. INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question as situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships, boats and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall also apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7. BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise caries on business as aforesaid, the profits of the enterprise may also taxed in the other State but only so much of them as is attributable directly or indirectly to that permanent establishment.
The words "directly or indirectly" mean, for the purposes of this Article, that where a permanent establishment takes an active part in negotiating concluding or fulfilling contracts entered into by the enterprise, then notwithstanding that other parts of the enterprise have also participated in those transactions, there shall be attributed to the permanent establishment that proportion of profits of the enterprise arising out of those contracts as the contribution of the permanent establishment to those transactions bears to that of the enterprise as a whole.
2. Subject to the provisions of paragraph 3, when an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere in accordance with the provisions of and subject to the limitations of the tax laws of that State.
4. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where informations is not available to the competent authority of that State in order to determine the profits to be attributed to a permanent establishment, provided that law shall be applied consistenily with the principles of this Article.
5. In so far as its has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary. The method of apportionment adopted shall, howewer be such that the result shall be in accordance with the principles contained in this Article.
6. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterpries.
7. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
8. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. SHIPPING AND AIR TRANSPORT
1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.
2. For the purposes of this Article profits from the operation of ships or aircraft in international traffic include:
a. income from the lease of ships or aircraft; and
b. profits from the use maintenance or rental of containers (including trailers and related equipment for the transport of containers);
Where such lease or such use, maintenance or rental, as the case may be, is incidental to the operation of ships or aircraft in international traffic.
3. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a join business or an international operating agency.
4. For the purposes of this Article, interest on funds connected with the operation of ships or aircraft in international traffic earmarked for the purpose of payments of all kinds, of wages and maintenance of ships or aircraft and their crew shall be regarded as income or profits derived from the operation of such ships or aircraft and the provisions of Article 11 shall not apply in relation to such interest.
Article 9. ASSOCIATED ENTERPRISES
Where:
a. an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b. the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and a enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprise in their commercial or financial relations which differ from those which wouble be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprise, but, by the reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
Article 10. DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends, the tax so charged shall not exceed 10 per cent of the gross amount of the dividends.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 15, as the case may be, shall apply.
5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
Article 11. INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises and accoring to the laws of that State, but if the recipient is the beneficial owner of such interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2
a. interest arising in a Contracting State shall be exempt from tax in that State provided it is derived and beneficially owned by:
(i) the Government, a political sub-division or a local authority of the other Contracting State; or
(ii) the Central Bank of the other Contracting State;
b. interest arising in a Contracting State shall be exempt from tax in that Contracting to the extent approved by the Government of that State if it is derived and beneficially owned by any person (other than a person referred to in sub-paragraph a. ) who is a resident of the other Contracting State provided that the transaction giving rise to the debt-claim has been approved in this regard by the Government of the first-mentioned Contracting State.
4. The term "interest" as used in this Article means income from debt- claims of every kind, whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from fixed base situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 15, as the case may be, shall apply.
6. Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a political sub-division, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the recipient is the beneficial owner of the royalties, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyrigh of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case, the provision of Article 7 or Article 15, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State ifself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 13. TECHNICAL FEES
1. Technical fees arising in a Contracting State which are derived by a resident of the other Contracting State may be taxed in that other State.
2. However, such technical fees may also be taxed in the Contracting State in which they arise, and according to the laws of that State; but if the recipient is the beneficial owner of the technical fees, the tax so charged shall not exceed 10 per cent of the gross amount of the technical fees.
3. The term "technical fees" as used in this Article means payments of any kind to any person, other than to an employee of the person making the payments, in consideration for any services of a technical, managerial or consultanncy nature.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the technical fees, being a resident of a Contracting State carries on business in the other Contracting State in which the technical fees arise through a permanent establishment situated therein, or performs in that other State independent personal services, and the technical fees are effectively connected with such permanent establishment or such services. In such case, the provisions of Article 7 or Artilce 15, as the case may be, shall apply.
5. Technical fees shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a loacal authority or a statutory body thereof, or a resident of that State. Where, however, the person paying the technical fees, wherther he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the obligation to pay the technical fees was incurred, and such technical fees are borne by that permanent establishment, then such technical fees shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
6. Where, by reason of a special relationship between the payer and the recipient or between both of them and some other person, the amount of the technical fees paid, exceeds for whatever reason, the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the law of each Contracting State due regard being had to the other provisions of this Agreement.
Article 14. CAPITAL GAINS
1. Gains derived by a resident of a Contracting State from the alienation of immovable property, referred to in Article 6, and situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or together with the whole enterprise) or of such fixed base, may be taxed in that other State.
3. Gains from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State of which the alienator is a resident.
4. Gains from the alienation of share of the capital stock of a company the property of which consists, directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State;
5. Gains from the alienation of shares other than those mentioned in paragraph 4 in a company which is a resident of a Contracting State may be taxed in that State.
6. Gains from the alienation of any property other than that mentioned in paragraphs 1, 2, 3, 4 and 5 shall be taxable only in the Contracting State of which the alienator is a resident.
Article 15. INDEPENDENT PERSONAL SERVICES
1. Income derived by a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State except in the following circumstances when such income may also be taxed in the other Contracting State:
a. if he has a fixed base regularly available to him in the other Contracting State for the other Contracting State for the purpose of performing this activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other Contracting State; or
b. if his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days in the relevant fiscal year concerned; in that case only so much of the income as is derived from his activities performed in that other State may be taxed in that other State.
2. The term "professional services" includes independent scientific, literary, artistic, educational or teaching activities, as well as the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants.
Article 16. DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 17, 18, 19, 20, 21 and 22, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a. the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the relevant fiscal year; and
b. the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
c. the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State shall be taxable only in that State.
Article 17. DIRECTORS' FEES
Directors' fees and similar payments derived by a resident of a Contracting State in his capacity as a member of the Board of Directors of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 18. INCOME EARNED BY ENTERTAINERS AND ATHLETES
1. Notwithstanding the provisions of Articles 15 and 16, income derived by a resident of a Contracting State as an entertainer such as a theater, motion picture, radio or television artists, or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State may be taxed in that other State.
2. While income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer or athlete himself but to another person, that income may, notwithstanding the provisions of Articles 7, 15 and 16, be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised.
3. Notwithstanding the provisions of paragraph 1, income derived by an entertainer or an athlete who is a resident of a Contracting State from his personal activities as such exercised in the other Contracting State, shall be taxable only in the first-mentioned Contracting State, if the activities in the other Contracting State are supported wholly or substantially from the public funds of the first-mentioned Contracting State, including any of its political subdivisions or local authorities.
4. Notwithstanding the provisions of paragraph 2 and Articles 7, 15 and 16, where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such in a Contracting State accrues, not to the entertainer, or athlete himself but to another person, that income shall be taxable only in the other Contracting State, if that other person is supported wholly or substantially from the public funds of the other State including any of its political subdivisions or local authorities.
Article 19. REMUNERATION AND PENSIONS IN RESPECT OF GOVERNMENT SERVICE
1. a. Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2.a. Any pension paid by, or out of funds created by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of that other State.
3. The provisions of Articles 16, 17 and 20 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
Article 20. NON-GOVERNMENT PENSIONS AND ANNUITIES
1. Any pension, other than a pension referred to in Article 19, or any annuity derived by a resident of a Contracting State from sources within the other Contracting State shall be taxed only in the first-mentioned Contracting State.
2. The term "pension" means a periodic payment made in consideration of past services or by way of compensation for injuries received in the course of performance of services.
3. The term “annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time, under an obligation to make the payments in return for adequate and full consideration in money's worth.
Article 21. PAYMENTS RECEIVED BY STUDENTS AND APPRENTICES
1. A student or business apprentice who is or was a resident of one of the Contracting States immediately before visiting the other Contracting State and who is present in that other State solely for the purpose of his education or training, shall be exempt from tax in that other State on:
a. payments made to him by persons residing outside that other State for the purposes of his maintenance, education or training; and
b. remuneration from employment in that other State, in an amount not exceeding US $2000 or its equivalent in respective currencies during any fiscal year, as the case may be, provided that such employment is directly related to his studies or is undertaken for the purpose of his maintenance.
2. The benefits of this Article shall extend only for such period of time as may be reasonable or customarily required to complete the education or training undertaken, but in no event shall any individual have the benefits of this Article for more than five consecutive years from the date of his first arrival in that other Contracting State.
Article 22. PAYMENTS RECEIVED BY PROFESSORS, TEACHERS AND RESEARCH SCHOLARS
1. A professor or teacher who is or was a resident of one of the Contracting State immediately before visiting the other Contracting State for the purpose of teaching or engaging in research, or both, at a university, college, school or other approved institution in that other Contracting State shall be exempt from tax in that other State on any remuneration for such teaching or research for a period not exceeding two years from the date of his arrival in that other State.
2. This Article shall not apply to income from research if such research is undertaken primarily for the private benefit of a specific person or persons.
3. For the purposes of paragraph 1, "approved institution" means an institution which has been approved in this regard by the competent authority of the concerned Contracting State.
Article 23. OTHER INCOME
1. Subject to the provisions of paragraph 2, items of income of a resident of a Contracting State, wherever arising, which are not expressly dealt with in the foregoing Articles of this Agreement, shall be taxable only in that Contracting State.
2. The provisions of paragraph 1 shall not apply to the income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 15, as the case may be, shall apply.
3. Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Agreement and arising in other Contracting State may also be taxed in that other State.
Article 24. AVOIDANCE OF DOUBLE TAXATIONS
1. The laws in force in either of the Contracting States will continue to govern the taxation of income in the respective Contracting States except where provisions to the contrary are made in this Agreement.
2. Where a resident of a Contracting State derives income which, in accordance with the provisions of this Agreement, may be taxed in the other Contracting State, the first-mentioned Contracting State shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in the other Contracting State whether directly or by deduction. Such deduction shall not, however, exceed that part of the income tax (as computed before the deduction is given) in the first-mentioned Contracting State which is attributable to the income which may be taxed in the other Contracting State.
3. The tax paid in the other Contracting State mentioned in paragraph 2 of this Article shall be deemed to include the tax which would have been payable but for the tax incentives granted under the laws of that Contracting State and which are designed to promote economic development.
Article 25. NON-DISCRIMINATION
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be Subject.
2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favorably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in the same circumstances. This provision shall not be construed as preventing a Contracting State from charging the profits of a permanent establishment which an enterprise of the other Contracting State has in the first-mentioned State at a rate higher than that imposed on the profits of a similar enterprise of the first-mentioned Contracting State, nor as being in conflict with the provisions of paragraph 3 of Article 7 of this Agreement.
3. Nothing contained in this Article shall be construed as obliging a Contracting State to grant to persons not resident in that State any personal allowances, reliefs, reductions and deductions for taxation purposes which are by law available only to persons who are so resident.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of that first-mentioned State are or may be subjected in the same circumstances.
5. The provisions of paragraphs 2 and 4 of this Article shall not apply to the Vietnamese profit remittance tax, which in any case shall not exceed 10 per cent of the gross amount of profits remitted, and the Vietnamese taxation in respect of agricultural production activities.
6. In this Article, the term "taxation" means taxes which are the subject of this Agreement.
Article 26. MUTUAL AGREEMENT PROCEDURE
1. Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authorityof the Contracting State of which he is a resident. This case must be presented within three years of the date of receipt of notice of the action which gives rise to taxation not in accordance with the Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach agreement to have an oral exchange of opinions, such exchange may take place through a Commission consisting of representative of the competent authorities of the Contracting State.
Article 27. EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information (including documents) as is necessary for carrying out the provisions of the Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement, in so far as the taxation thereunder is not contrary to the Agreement, in particular for the prevention of fraud or evasion of such taxes. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of the State. However, if the information is originally regarded as secret in the transmitting State, it shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes which are the subject of the Agreement. Such persons or authorities shall use the information only for such purposes but may disclose the information in public court proceedings or in judicial decisions. The competent authorities shall, through consultation, develop appropriate conditions, methods and techniques concerning the matters in respect of which such exchange of information shall be made, including, where appropriate, exchange of information regarding tax avoidance.
2. The exchange of information or documents shall be either on a outline basis or on request with reference to particular cases or both. The competent authorities of the Contracting State shall agree from time to time on the list of the information or documents which shall be furnished on a routine basis.
3. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
a. to carry out administrative measures at variance with the laws of administrative practice of that or of the other Contracting State;
b. to supply information of documents which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c. to supply information or documents which would disclose any trade, business, industrial, commercial or professional secret or trade process or information the disclosure of which would be contrary to public policy.
Article 28. AGENTS DIPLOMATIC AND CONSULAR OFFICERS
Nothing in this Agreement shall effect the fiscal privileges of diplomatic or consular officers under the general rules of international law or under the provisions of special agreements.
Article 29. ENTRY INTO FORCE
Each of the Contracting States shall notify to the other the completion of the procedures required by its law for the bringing into force of this Agreement. This Agreement shall enter into force on the date of the latter of these notifications and shall thereupon have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amount paid on or after 1 January following the calendar year in which the Agreement enters into force;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year following the calendar year in which the Agreement enters into force, and in subsequent calendar years.
b. in India, in respect of income arising in any previous year beginning on or after the first day of April next following the calendar year in which the latter of the notifications is given.
Article 30. TERMINATION
This Agreement shall remain in force indefinitely but either of the Contracting States may, on or before the thirtieth day of June in any calendar year beginning after the expiration of a period of five years from the date of its entry into force, give the other Contracting State through diplomatic channels, written notice of termination and, in such event, this Agreement shall cease to have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amount paid on or after 1 January following the calendar year in which the notice of termination is given;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year following the calendar year in which the notice of termination is given, and in subsequent calendar years.
b. in India, in respect of income arising in any previous year beginning on or after the first day of April next following the calendar year in which the notice is given;
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed the present Agreement.
DONE in duplicate at Hanoi this 7th day of September one thousand nine hundred and ninety-four in Hindi, Vietnamese and English languages. In case of divergence of interpretation, the English text shall prevail.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
FOR THE GOVERNMENT OF THE REPUBLIC INDIA
This Agreement entered into force on 2 Feb. 1995.
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Cộng hoà Ấn Độ
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Hồ Tế, Bhuvesh Chaturvedi
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07/09/1994
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02/02/1995
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Đang cập nhật
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Còn hiệu lực
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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 100-CP
Hanoi, August 29, 1994
DECREE
ON THE ESTABLISHMENT OF KIEN AN DISTRICT UNDER THE CITY OF HAIPHONG
THE GOVERNMENT
Pursuant to the Law on Organization of the Government on the 30th of September, 1992; At the proposal of the President of the People's Committee of the city of Haiphong, and the Minister-Chairman of the Government Commission on Organization and Personnel,
DECREES:
Article 1. - To establish Kien An district under the City of Haiphong on the basis of the entire area, population and administrative boundary of the present town of Kien An.
Kien An district has a land area of 2, 669. 85 hectares and a population of 73, 297. It is composed of nine administrative units which are the following wards:
1. Quan Tru ward (retaining its present boundary) with a land area of 425.48 hectares and a population of 10, 112.
2. Bac Son ward (retaining its present boundary) with a land area of 204.5 hectares and a population of 8, 418.
3. Tran Thanh Ngo ward (retaining its present boundary) with a land area of 153.56 hectares and a population of 9, 566.
4. Ngoc Son ward (retaining its present boundary) with a land area of 248.15 hectares and a population of 7, 320.
5. Changing Dong Hoa commune into Dong Hoa ward.
Dong Hoa ward has a land area of 360.55 hectares and a population of 6, 872.
Dong Hoa ward is bordered on the East by An Hai district; on the West by Bac Son ward; on the South by Nam Son ward and Kien Thuy district; and on the North by Quan Tru ward.
6. To establish Trang Minh ward on the basis of a land area of 292.99 hectares and a population of 5, 990 of Bac Ha commune, and a land area of 28.43 hectares and a population of 770 of Phu Lien ward.
Trang Minh ward is bordered on the East by Phu Lien ward; on the West by An Lao district; on the South by Kien Thuy district; and on the North by Ngoc Son ward and Trang Thanh Ngo ward.
7. To establish Van Dau ward on the basis of a land area of 96.76 hectares and a population of 2, 195 of Nam Ha commune; a land area of 186.09 hectares and a population of 1, 882 of Bac Ha commune; and a land area of 47.44 hectares and a population of 5, 985 of Phu Lien ward.
Van Dau ward has a land area of 330.29 hectares and a population of 10, 062.
Van Dau ward is bordered on the East by Kien Thuy district; on the West by Tranh Thanh Ngo ward; on the South by Phu Lien ward; on the North by Nam Son ward and Kien Thuy district.
8. To incorporate Quy Tuc hamlet and Dong Tai hamlet of Bac Ha commune (241.33 hectares in land area and 3, 021 in population) with the remainder of Phu Lien ward (47.06 hectares in land area and 3, 033 in population) into a new administrative unit called Phu Lien ward.
After readjustment of its boundary, Phu Lien ward has a land area of 288.99 hectares and a population of 6, 004.
Phu Lien is bordered on the East by Kim Thuy district; on the West by Tran Thanh Ngo ward; on the South by Trang Minh ward; and on the North by Van Dau ward.
9. To establish Nam Son ward on the basis of the remainder of Nam Ha commune (composed of Kha Lam hamlet and Le Tao hamlet).
Nam Son ward has a land area of 336.91 hectares and a population of 8, 141.
Nam Son ward is bordered on the East by Kien Thuy district; on the West by Tranh Thanh Ngo ward; on the South by Van Dau ward; on the North by Bac Son, Quan Tru and Dong Hoa wards.
Kien An district is bordered on the East and on the South by Kien Thuy district; on the West by An Lao district; and on the North by An Hai and Le Chau districts.
Article 2. - This Decree takes effect as from the date of its promulgation. All earlier regulations contrary to this Decree are now annulled.
Article 3. - The President of the People's Committee of the city of Haiphong and the Minister-Chairman of the Government Commission on Organization and Personnel shall have to implement this Decree.
ON BEHALF OF THE GOVERNMENT THE PRIME MINISTER Vo Van Kiet
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100-CP
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Nghị định
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Chính phủ
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Võ Văn Kiệt
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29/08/1994
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29/08/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 113-CP
Hanoi, August 29, 1994
DECREE
ON THE ESTABLISHMENT OF CUA LO TOWN UNDER NGHE AN PROVINCE
THE GOVERNMENT
Pursuant to the Law on Organization of the Government on the 30th of September, 1992; At the proposal of the President of the People's Committee of Nghe An province and the Minister Chairman of the Government Commission on Organization and Personnel;
DECREES:
Article 1. - To establish the town of Cua Lo under Nghe An province, on the basis of the Cua Lo township and the communes of Nghi Thu, Nghi Hung, Nghi Hoa and Nghi Ai, together with a land area of 50 hectares and a population of 2, 291 people of Nghi Quang commune in Nghi Loc district.
The town of Cua Lo has a land area of 2, 329 hectares and a population of 37, 712, composed of the following administrative units:
1. Nghi Tan ward is established on the basis of a land area of 58 hectares and a population of 6, 800 of Cua Lo township, and 50 hectares and a population of 2, 291 of Nghi Quang commune.
Nghi Tan ward has a land area of 108 hectares and a population of 9, 091.
Nghi Tan ward is bordered on the East by Nghi Thuy ward; on the West, the South and the North by Nghi Loc district.
2. Nghi Thuy ward is established on the bais of a land area of 94 hectares and a population of 5, 400 of Cua Lo township.
Nghi Thuy wards is bordered on the Easty by the East Sea; on the West by Nghi Tan ward; on the South by Thu Thuy ward and Nghi Loc district; and on the North by Nghi Loc district.
3. Thu Thuy ward is established on the basis of the remainder of Cua Lo township composed of 98 hectares of land area and a population of 5, 200.
Thu Thuy is bordered on the East by the East Sea; on the West by Nghi Thu commune and Nghi Loc district; on the South by Nghi Thu commune; and on the North by Nghi Thuy ward.
4. Nghi Hoa ward is established on the basis of the present land area and population of Nghi Hoa commune.
Nghi Hoa ward has a land area of 350 hectares and a population of 3, 000.
Nghi Hoa ward is bordered on the Easty by the East Sea; on the West by Nghi Loc district; on the South by Nghi Hai Ward; and on the North by Nghi Hung commune.
5. Nghi Hai ward is established on the basis of the present land area and population of Nghi Hai commune.
Nghi Hai ward has a land area of 387 hectares and a population of 7, 994.
Nghi Hai ward is bordered on the East by the East Sea; on the West by Nghi Hoa ward; on the Sounth by Nghi Xuan district of Ha Tinh province; and on the North by Nghi Hoa ward.
6. Nghi Thu commune (retaining its present area and population) has a land area of 323 hectares and a population of 2, 701.
7. Nghi Hung commune (retaining its present area and population) has a land area of 969 hectares and a population of 4, 326.
After readjustment of the boundary:
Nghi Quang commune (Nghi Loc district) shall have a land area of 509 hectares and a population of 4, 503.
Nghi Quang commune is bordered on the East by Nghi Tan ward (Cua Lo town); on the West by Nghi Yen commune; on the South by Nghi Hop commune; and on the North by Nghi Yen, Nghi Tien and Nghi Thiet communes.
- The remaining land area of Nghi Loc district is 38, 318 hectares with a population of 167, 538. It is composed of the following 33 administrative units; the communes of Nghi Kieu, Nghi Lam, Nghi Van, Nghi Hung, Nghi Dong, Nghi Cong, Nghi My, Nghi Phuong, Nghi Hoa, Nghi Thuan, Nghi Long, Nghi Trung, Nghi Dien, Nghi Van, Nghi Kim, Nghi Lien, Nghi Thnh, Nghi Truong, Nghi An, Nghi Duc, Nghi Xuan, Nghi Xa, Nghi Thach, Nghi Phong, Nghi Thai, Nghi Tho, Nghi Yen, Nghi Tien, Nghi Thiet, Nghi Quang, Nghi Hop, Nghi Khanh, and the Quan Hanh township.
Article 2. - This Decree takes effect as from the date of its promulgation. All earlier provisions contrary to this Decree are now annulled.
Article 3. - The President of the People's Committee of Nghe An province and the Government Commission on Organization and Personnel shall have to implement this Decree.
ON BEHALF THE GOVERNMENT THE PRIME MINISTER Vo Van Kiet
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113-CP
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Nghị định
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Chính phủ
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Võ Văn Kiệt
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29/08/1994
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29/08/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRESIDENT OF THE SOCIALIST REPUBLIC OF VIETNAM
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 36-L/CTN
Hanoi, September 10, 1994
ORDER
PROMULGATING THE ORDINANCE ON ESTABLISHING THE STATE HONOR TITLE "HERO VIETNAMESE MOTHER"; THE ORDINANCE ON PREFERENTIAL TREATMENT OF REVOLUTIONARY ACTIVISTS, FALLEN HEROES AND THEIR FAMILIES, WAR INVALIDS, DISEASED SOLDIERS, RESISTANCE ACTIVISTS, AND PEOPLE WITH MERITORIOUS SERVICES TO THE REVOLUTION; AND THE ORDINANCE ON UTILIZATION AND PROTECTION OF IRRIGATION WORKS
THE PRESIDENT OF THE SOCIALIST REPUBLIC OF VIETNAM
Pursuant to Article 103 and 106 of the 1992 Constitution of the Socialist Republic of Vietnam; Proceeding from Article 78 of the Law on Organization of the National Assembly,
PROMULGATES:
1. The Ordinance on Establishing the State Honor Title "Hero Vietnamese Mother" which was passed by the Standing Committee of the Ninth National Assembly of the Socialist Republic of Vietnam on the 29th of August, 1994.
2. The Ordinance on Preferential Treatment of Revolutionary Activists, Fallen Heroes and Their Families, War Invalids, Diseased Soldiers, Resistance Activists and People with Meritorious Services to the Revolution, which was passed by the Standing Committee of the Ninth National Assembly of the Socialist Republic of Vietnam on the 29th of August, 1994.
3. The Ordinance on Utilization and Protection of Irrigation Works which was passed by the Standing Committee of the Ninth National Assembly of the Socialist Republic of Vietnam on the 31st of August, 1994.
THE PRESIDENT OF THE SOCIALIST REPUBLIC OF VIETNAM Le Duc Anh
ORDINANCE
ON ESTABLISHING THE STATE HONOR TITLE "HERO VIETNAMESE MOTHER"
In acknowledgment of the great merits of the Vietnamese mothers who made numerous contributions and sacrifices for the Fatherland;
With a view to promoting and raising the awareness about the revolutionary tradition, patriotism and the ethics of "while drinking the water, think of its source" of our nation;
Pursuant to Articles 67, 84, 91 and 103 of the 1992 Constitution of the Socialist Republic of Vietnam;
Proceeding from the Resolution of the Ninth National Assembly at its Fifth Session on the law-making program for the last six months of 1994;
This Ordinance establishes the State Honor Title "Hero Vietnamese Mother".
Article 1. - To establish the State Honor Title "Hero Vietnamese Mother" to confer or posthumously confer on the mothers who made numerous contributions and sacrifices for the cause of national liberation and defense, and the discharge of international duty.
Article 2. - The mother, who belongs to one of the following categories, shall be conferred or posthumously conferred with the title "Hero Vietnamese Mother".
1. Having two children who are fallen heroes, and her husband or herself is also a fallen hero;
2. Having only two children both being fallen heroes, or having a single child who is a fallen hero;
3. Having three children or more who are fallen heroes;
4. Having one child who is a fallen hero, and both her husband and herself are also fallen heroes.
Article 3. - The mothers, who have been conferred with the title "Hero of the People's Armed Forces" and who fall into one of the categories stipulated in Article 2 of this Ordinance, shall be conferred or posthumously conferred with the title "Hero Vietnamese Mother".
Article 4. - The mother, who is conferred with the title "Hero Vietnamese Mother", shall be issued with a Certificate and a Medal, provided with an allowance paid in one payment, and entitled to the preferential treatment provided for by law.
Article 5. - The conferment or posthumous conferment of the title "Hero Vietnamese Mother" shall be decided by the State President at the proposal of the Government.
Article 6. - Regarding the mother who is conferred with the title "Hero Vietnamese Mother" but who proves no longer worthy of that title, the Government shall consider and propose to the Sate President to revoke the conferment and retrieve the Certificate and Medal.
Article 7. - This Ordinance takes effect as from the 1st of December, 1994.
Article 8. - The Government shall make detailed provisions for the implementation of this Ordinance.
ON BEHALF OF THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY CHAIRMAN Nong Duc Manh
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36-L/CTN
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Pháp lệnh
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Uỷ ban Thường vụ Quốc hội
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Nông Đức Mạnh
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29/08/1994
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01/12/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
BETWEEN THE SOCIALIST REPUBLIC OF VIETNAM AND THE REPUBLIC OF HUNGARY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Socialist Republic of Vietnam and the Republic of Hungary,
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
Article 1. PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
3. The existing taxes to which this Agreement shall apply are:
a. in Vietnam:
(i) the personal income tax;
(ii) the profit tax;
(iii) the profit remittance tax;
(hereinafter referred to as "Vietnamese tax");
b. in Hungary:
(i) the income tax on individuals;
(ii) the corporation tax;
(hereinafter referred to as "Hungarian tax").
4. The Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any important changes which have been made in their respective taxation laws.
Article 3. GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
a. the term "Vietnam" means the Socialist Republic of Vietnam;
b. the term "Hungary" means the Republic of Hungary;
c. the terms "a Contracting State" and "the other Contracting State" mean Vietnam or Hungary as the context requires;
d. the term "person" includes an individual, a company and any other body of persons;
e. the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
f. the terms "enterprise of a Contracting" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
g. the term "national" means:
(i) any individual possessing the nationality of a Contracting State;
(ii) any legal person, partnership and association deriving its status as such from the laws in force in a Contracting State;
h. the term "international traffic" means any transport by a ship, boat, aircraft or road-transport vehicle operated by an enterprise of a Contracting State, except when the ship, boat, aircraft or road-transport vehicle is operated solely between places in the other Contracting State; and
i. the term "competent authority" means:
(i) in the case of Vietnam, the Minister of Finance or his or her authorized representative; and
(ii) in the case of Hungary, the Minister of Finance or his or her authorized representative.
2. As regards the application of the Agreement by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the Agreement applies.
Article 4. RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature.
2. Where by reason of the provisions of paragraph 1, an individual is a resident of both Contracting States, then his status shall be determined as follows:
a. he shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
b. if the State in which he has his centre of vital interests cannot be determined, or if he has no permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
c. if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
d. if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated.
Article 5. PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop; and
f. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
3. The term "permanent establishment" likewise encompasses:
a. a building site, construction, assembly or installation project or supervisory activities in connection therewith, but only where such site, project or activities continue for a period of more than six months;
b. the furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or a connected project) within the country for a period or periods aggregating more than six months within any 12-month period.
4. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a. the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
b. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
c. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d. the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information for the enterprise;
e. the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character, and
f. the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
5. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person:
a. has and habitually exercises in that State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised though a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph; or
b. has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise.
6. Notwithstanding the preceding provisions of this Article, an insurance enterprise of a Contracting State shall, except in regard to re-insurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or insures risks situated therein through a person other than an agent of an independent status to whom paragraph 7 applies.
7. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, he will not be considered an agent of an independent status within the meaning of this paragraph.
8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6. INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats, aircraft and road-transport vehicle shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7. BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
a. that permanent establishment;
b. sales in that other State of goods or merchandise of the same or similar kind as those sold through that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed of for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed of for management, or, except in the case of banking enterprise by way of interest on moneys lent to the head office of the enterprise or any of its other offices.
4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude such Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. INTERNATIONAL TRANSPORT
1. Profits derived by an enterprise of a Contracting State from the operation of ships, boats, aircraft or road-transport vehicles in international traffic shall be taxable only in that Contracting State.
2. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
Article 9. ASSOCIATED ENTERPRISES
Where
a. an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b. the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by the reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
Article 10. DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State, may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends, the tax so charged shall not exceed 10 per cent of the gross amount of the dividends.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
Article 11. INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises, and according to the laws of that State, but if the recipient is the beneficial owner of such interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or a fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that State, but if the recipient is the beneficial owner of such royalties, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, or a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 13. GAINS FROM THE ALIENATION OF PROPERTY
1. Gains from the alienation of immovable property, as defined in paragraph 2 of Article 6, may be taxed in the Contracting State in which such property is situated.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
3. Gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of immovable property situated in the other Contracting State, may be taxed in that other State.
4. Gains from the alienation of ships, boats, aircraft or road-transport vehicles operated by an enterprise of a Contracting State in international traffic, or movable property pertaining to the operation of such ships, boats, aircraft or road-transport vehicles shall be taxable only in that State.
5. Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
Article 14. INDEPENDENT PERSONAL SERVICES
1. Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 15. DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18, 19 and 21, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if the following conditions are met at the same time:
a. the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period, and
b. the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
c. the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship, boat, aircraft or road-transport vehicle operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
Article 16. DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors or any similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17. ARTISTES AND SPORTSMEN
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsman are exercised.
3. Notwithstanding the provisions of paragraphs 1 and 2, income mentioned in this Article shall be exempt from tax in the Contracting State in which the activity of the entertainer or sportsman is exercised provided that this activity is supported in a considerable part out of public funds of this State or of the other State or the activity is exercised under a cultural agreement or arrangement between the Contracting States.
Article 18. PENSIONS
Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only in that State.
Article 19. GOVERNMENT SERVICE
1. a. Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2. a. Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority may be taxed in that State.
b. However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that other State.
3. The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
Article 20. STUDENTS AND APPRENTICES
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Article 21. TEACHERS, PROFESSORS AND RESEARCHERS
1. An individual who is or was a resident of a Contracting State immediately before making a visit to the other Contracting State, and who, at the invitation of any university, college or other similar educational institution, visits that other State for a period not exceeding two years solely for the purpose of teaching or research or both at such educational institution shall be exempt from tax in that other State on any remuneration for such teaching or research which is subject to tax in the first-mentioned Contracting State.
2. This Article shall not apply to income from research if such research is undertaken primarily for the private benefit of a specific person or persons.
Article 22. OTHER INCOME
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2. However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in the other State.
3. The provisions of paragraph 1 shall not apply to the income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
Article 23. METHODS FOR ELIMINATION OF DOUBLE TAXATION
1. In Vietnam, double taxation shall be eliminated as follows:
Where a resident of Vietnam derives income, profits or gains which under the law of Hungary and in accordance with this Agreement may be taxed in Hungary, Vietnam shall allow as a credit against its tax on the income, profits or gains an amount equal to the tax paid in Hungary. The amount of credit, however, shall not exceed the amount of the Vietnamese tax on that income, profits or gains computed in accordance with the taxation laws and regulations of Vietnam.
2. In Hungary, double taxation shall be eliminated as follows:
a. Where a resident of Hungary derives income which, in accordance with the provisions of this Agreement, may be taxed in Vietnam, Hungary shall, subject to the provisions of subparagraphs (b. ) and (c. ), exempt such income from tax.
b. Where a resident of Hungary derives items of income which, in accordance with the provisions of Article 10, 11 and 12, may be taxed in Vietnam, Hungary shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Vietnam. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income derived from Vietnam.
c. Where in accordance with any provision of the Agreement income derived by a resident of Hungary is exempt from tax in Hungary, Hungary may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
d. For the purpose of sub-paragraph 2(a. ) of this Article, the income tax paid in Vietnam by a resident of Hungary in respect of business profits earned through a permanent establishment situated in Vietnam shall be deemed to include any amount of tax which would have been payable as Vietnamese tax for any year but for an exemption from or a reduction of tax granted for that year or any part thereof as a result of the application of the provisions of Vietnamese law designed to extend time limited tax incentives to promote foreign investment for development purposes.
e. For the purpose of sub-paragraph 2(b. ) of this Article, the tax paid in Vietnam on royalties to which paragraph 2 of Article 12 applies shall be deemed to be 15 per cent of the gross amount of such royalties.
Article 24. NON-DISCRIMINATION
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.
2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
3. Except where the provisions of Article 9, paragraph 6 of Article 11 or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected.
5. The provisions of paragraphs 2 and 4 of this Article shall not apply to the Vietnamese profit remittance tax, which in any case shall not exceed 10 per cent of the gross amount of profits remitted, and the Vietnamese taxation in respect of agricultural production activities, provided that the taxation of residents of Hungary so determined shall not be more burdensome than the taxation of residents of any third State.
6. Nothing contained in this Article shall be construed as obliging either Contracting State to grant to individuals not resident in that State any of the personal allowances, reliefs and reductions for tax purposes which are granted to individuals so resident.
7. The provisions of this Article shall apply only to the taxes which are the subject of this Agreement.
8. Notwithstanding the provisions of this Article, for so long as Vietnam continues to grant to investors licenses under the Law on Foreign Investment in Vietnam, which specify the taxation to which the investor shall be subjected, the imposition of such taxation shall not be regarded as breaching the terms of paragraphs 2 and 4 of this Article, provided that the taxation of residents of Hungary so determined shall not be more burdensome than the taxation of residents of any third State.
Article 25. MUTUAL AGREEMENT PROCEDURE
1. Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which the person is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic laws of the Contracting States.
3. The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
Article 26. EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State. However, if the information is originally regarded as secret in the transmitting State, it shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
a. to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b. to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c. to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
Article 27. DIPLOMATIC AGENTS AND CONSULAR OFFICERS
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article 28. ENTRY INTO FORCE
1. The Contracting States shall notify each other that their constitutional requirements for the entry into force of this Agreement have been complied with.
2. This Agreement shall enter into force on the date of the latter of the notifications referred to in paragraph 1 and its provisions shall apply:
a. in respect of taxes withheld at source, to amounts of income derived on or after 1 January in calendar year next following the year in which the Agreement enters into force;
b. in respect of other taxes on income, to such taxes chargeable for any taxable year beginning on or after 1 January in the calendar year next following the year in which the Agreement enters into force.
Article 29. TERMINATION
This Agreement shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year following after the period of five years from the date on which the Agreement enters into force. In such event, the Agreement shall cease to have effect:
(i) in respect of taxes withheld at source, to amounts of income derived on or after 1 January in the calendar year next following the year in which the notice is given;
(ii) in respect of other taxes on income, to such taxes chargeable for any taxable year beginning on or after 1 January in the calendar year next following the year in which the notice is given.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Agreement.
DONE in duplicate at Budapest, this 26th day of August 1994, in the Vietnamese, Hungarian and English languages, all texts being equally authentic. In case of any divergency of interpretation, the English text shall prevail.
FOR THE SOCIALIST REPUBLIC OF VIETNAM Tran Duc Luong Vice Prime Minister
FOR THE REPUBLIC F HUNG-GA-RI Beákesi Laászloá Minister Of Finance
This Agreement entered into force on 30 Jun. 1995
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Cộng hoà Hungary
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Trần Đức Lương, Bérkesi László
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26/08/1994
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30/06/1995
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRIME MINISTER OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 450-TTg
Hanoi, August 24, 1994
DECISION
ASSIGNING THE FOREIGN TRADE UNIVERSITY THE TASK OF POST-GRADUATE TRAINING
THE PRIME MINISTER
Proceeding from Decision No.224-TTg on the 24th of May, 1976 of the Prime Minister on post-graduate training in the country; Considering the proposal of the Ministry of Education and Training (offical dispatch No.4125-SDH of the 26th of June, 1994); and with the agreement between the Ministry of Science, Technology and Environment, and the Ministry of Education and Training (official dispatch No.1565-TCCBKH of the 28th of July, 1994),
DECIDES:
Article 1. - To assign the task of training post-graduates to the Foreign Trade University.
Article 2. - The Ministry of Education and Training shall, together with the Ministry of Science, Technology and Environment, define the training disciplines for the Foreign Trade University.
Article 3. - The Minister of Education and Training, the Minister of Science, Technology and Environment, the Minister of Finance, the Chairman of the State Planning Committee, the Rector of the Foreign Trade University, and the Ministers and Heads of the agencies concerned are responsible for the implementation of this Decision.
FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Nguyen Khanh
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450-TTg
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Quyết định
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Thủ tướng Chính phủ
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Nguyễn Khánh
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24/08/1994
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08/09/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRIME MINISTER OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 411-TTg
Hanoi, August 09, 1994
DECISION
ON THE ESTABLISHMENT OF THE THANG LONG PEOPLE-SPONSORED UNIVERSITY
Pursuant to the Law on Organization of the Government on the 30th of September, 1992; Pursuant to Decree No 15-CP issued on the 2nd of March, 1993 on the tasks, power and responsibility in State management of the Ministries and Agencies of ministerial level; In consideration of the proposal of the Minister of Education and Training (embodied in Note No 3769-TCCB dated the 19th of June, 1994);
DECIDES:
Article 1. - To permit the establishment of the Thang Long People-Sponsored University on the basis of the Thang Long People-Sponsored University Center which was founded by Decision No 1687-KHTV of the 15th of December, 1988 of the Minister of University and Higher Education and Vocational Training (now the Minister of Education and Training).
Article 2. - The Thang Long People-Sponsored University is an establishment of university education under the State management of the Ministry of Education and Training. It has the legal statutes and its own seal and bank accounts.
The diplomas and certificates issued by the Thang Long People-Sponsored University belong to the national system of diplomas and certificates.
Article 3. - The Thang Long People-Sponsored University shall organize and operate by law, by the Regulations for People-Sponsored Universities issued by the Ministry of Education and Training and by its own Statute which is approved by the Minister of Education and Training.
Article 4. - The Minister of Education and Training, the Cabinet Ministers and Heads of the agencies of ministerial level, the Heads of the agencies attached to the Government and the Presidents of the People's Committees of concerned provinces and cities directly under the Central Government are responsible for the implementation of this Decision.
FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Nguyen Khanh
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411-TTg
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Quyết định
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Thủ tướng Chính phủ
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Nguyễn Khánh
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09/08/1994
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24/08/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 84-CP
Hanoi, August 08, 1994
DECREE
ON DETAILED PROVISIONS FOR THE IMPLEMENTATION OF THE ORDINANCE ON ADDITIONAL TAXES ON HOUSEHOLDS USING OVER-QUOTA AGRICULTURAL LAND
THE GOVERNMENT
Pursuant to the Law on Organization of the Government on the 30th of September, 1992; Proceeding from the Ordinance on Additional Taxes on Households Using Over-Quota Agricultural Land passed by the Standing Committee of the National Assembly on the 15th of March, 1994; At the proposal of the Minister of Finance,
DECREES:
I. TAX PAYERS AND THE TAXABLE OBJECTS
Article 1. - Tax payers:
Households which use agricultural land in excess of the quotas prescribed by the law shall pay additional taxes in accordance with the provision of this Decree.
The households, which shall pay these additional taxes, include those of farmers, individuals and private citizens registered for tax payment for use of agricultural land.
Article 2. - The taxable objects:
The taxable objects are the areas of agricultural land used in excess of the quotas prescribed by the law.
The quotas of agricultural land to be assigned to each of the households as prescribed for each category and locality by Decree No 64-CP issued on the 27th of September, 1993, by the Government are as follows:
1. For agricultural land to be grown with annual plants: in the provinces of Minh Hai, Kien Giang, Soc Trang, Can Tho, An Giang, Vinh Long, Tra Vinh, Dong Thap, Tien Giang, Long An, Ben Tre, Tay Ninh, Song Be, Dong Nai, Ba Ria-Vung Tau and Ho Chi Minh City, the areas shall not exceed 3 (three) hectares; in other provinces and cities directly under the Central Government, they shall not exceed 2 (two) hectares.
2. For agricultural land to be grown with perennial plans: in low-land communes, the areas shall not exceed 10 (ten) hectares; in mid-land and mountainous communes, they shall not exceed 30 (thirty) hectares.
II. BASES FOR TAX CALCULATION
Article 3. - The bases for calculating the additional taxes are the over-quota area of agricultural land, the average tax levied on each category of agricultural land and the tax rate which is 20% (twenty percent) of the tax on the use of agricultural land.
Article 4. - If a household is using many categories of agricultural land, the areas subjected to additional taxes shall be calculated on the basis of the quotas prescribed for each category.
Article 5. - The average tax levied on each category of agricultural land, which is a base for calculating additional taxes, is the average of the taxes on the use of agricultural land per land unit of each land category used by the tax-paying household.
III. TAX RETURN, CALCULATION AND PAYMENT
Article 6. - The registration of the use of over-quota areas of agricultural land for calculation of additional taxes shall be conducted in accordance with the provision of Article 11 of the Law on Taxes on the Use of Agricultural Land and Article 9 of Decree No 74-CP issued on the 25th of October, 1993, by the Government.
A household which is using agricultural land in different communes, city wards, districts, provincial towns and cities in one or many provinces or cities directly under the Central Government shall, apart from filing a tax return with the tax agency at the locality where it registers for taxes on the use of agricultural land, file a combined tax return on all the agricultural land areas it is actually using in different localities with the tax agency at the locality of its residence.
Article 7. - On the basis of the tax return filed by the household, the tax agency at the locality where the household resides shall check the entire area of agricultural land that it is using in different localities to calculate the tax it has to pay in addition to its tax calculated in accordance with Article 9 of the Law on Taxes on the Use of Agricultural Land.
Article 8. - The additional taxes shall be calculated annually along with the tax on the use of agricultural land to be paid by the household, included in its record of tax on the use of agricultural land and paid to the tax agency at the locality of its residence together with its tax on the use of agricultural land.
Article 9. - A household, which is paying these additional taxes for use of over-quota agricultural land in different localities but which is residing at a non-agricultural area, shall file its tax return with, and pay the taxes at, the locality where it registers for taxes.
Regarding the calculation, registration and collection of the additional taxes of these households, the tax agency at the locality where the household registers its tax record and the household itself shall work out an agreement on the place where the household shall pay its addition taxes on the use of over-quota agricultural land.
IV. IMPLEMENTATION PROVISIONS
Article 10. - The tax reduction and exemption, the handling of violations and complaints and the collection of additional taxes on households using over-quota agricultural land shall be implemented in accordance with the Law on Taxes on the Use of Agricultural Land and the documents guiding the implementation of the Law on Taxes on the Use of Agricultural Land and the documents guiding the implementation of the Law on Tax on the Use of Agricultural Land.
Article 11. - This Decree takes effect as from the 1st of January, 1994.
Article 12. - The Minister of Finance shall provide detailed guidance for the implementation of this Decree.
Article 13. - The ministers and heads of agencies of ministerial level, the heads of agencies attached to the Government, and the presidents of the People's Committees of provinces and cities directly under the Central Government shall be responsible for the implementation of this Decree.
ON BEHALF OF THE GOVERNMENT FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Phan Van Khai
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84-CP
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Nghị định
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Chính phủ
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Phan Văn Khải
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08/08/1994
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01/01/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRIME MINISTER OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness
No. 396-TTg
Hanoi, August 04, 1994
DECISION
ON AMENDMENTS AND SUPPLEMENTS TO A NUMBER OF POINTS IN REGULATIONS ON FOREIGN CURRENCY CONTROL IN NEW STAGE
THE PRIME MINISTER OF THE GOVERNMENT
Pursuant to the Law on Governmental Organization dated 30 September 1992; Based on the results of the Government's 27 April 1994 session on tightening foreign currency control in the new stage; At the request of the Governor of the State Bank;
DECIDES
Article 1
All foreign currency generated from exports, services for foreign countries and any other sources within the country by all organizations and units must be deposited into their accounts at Banks authorized to trade in foreign currency transactions in Vietnam. Only the following organizations and units are allowed to open foreign currency accounts in foreign countries in service of their production and business :
1/ Banks and Financial Companies meeting all requirements of the State Bank are allowed to open foreign currency accounts in overseas banks to conduct business and make international payments in service of clients.
2/ Units belonging to aviation, maritime, post and insurance branches are permitted to open foreign currency accounts in overseas banks to make on-spot earnings and expenditures and clearings for their operations in accordance with international practices.
3/ Foreign-invested enterprise are allowed to open foreign currency accounts to ask for foreign loans in accordance with the Law on Foreign Investment and legal documents guiding the execution of the Law on Foreign Investment.
4/ Vietnamese economic organization authorized by the Government Prime Minister to set up offices abroad to conduct production and business activities.
The State Bank will grant licenses to those qualified to open foreign currency accounts abroad and will supervise those organizations, units' activities over the accounts.
Article 2
Organizations and units are allowed to retain part of the deposit in their foreign currency accounts for production and business purposes of their own. The remainder of the deposit unused within the quarter must be sold to Banks and Financial Companies authorized to trade in foreign currency transaction.
The State Bank shall together with organizations, units with large quantity of foreign currency earnings determine the quantity of foreign currency the organizations, units need for use right in the quarter, serving as basis for the dealing in foreign currency with the Bank; direct Commercial Banks and Financial Companies to make purchases of foreign currency from units for use to meet general demands for foreign currency; as well as calculate, determine the reasonable difference between selling and buying rates in order to reduce losses the units may suffer as a result of differences between the selling rates to the Banks and the buying rates by the Banks.
Article 3
Organizations, units (except Banks, Financial Companies authorized to trade in foreign currency transactions) are not allowed to make direct lending, payments, sales, purchases or transfer of foreign currency with one another. All payments, sales, purchases and spending in foreign currency must be conducted through Banks and Financial Companies authorized to trade in foreign currency transactions.
Foreign currency used in accordance with Article 2 above shall mainly spends on payments for imported commodities and services with foreigners or on loan repayments to creditors inside and outside the country; payments made among domestic units in foreign currency shall be made only in the following cases :
1/ Payments through foreign currency accounts among principals and agents of imports-exports.
2/ Payments of expenditures, service to organizations working as agents for foreign companies such as selling air tickets, aviation and maritime freight fares, purchase of insurance policies, foreign re-insurance, international post fees, payments to foreign agents.
Article 4
In order to step by step achieve the goal of one currency on the Vietnamese territory, organizations and units having shops formerly authorized by the State Bank to receive foreign currency for their sales and services shall from now on receive Vietnamese currency. Only duty-free shops and service agencies at airports, seaports and other places permitted by the Government Prime Minister are allowed to continue receiving payments by customers in foreign currency in accordance with the licenses issued by the State Bank.
The Governor of the State Bank shall be responsible for directing and supervising Banks and Financial Companies authorized to trade in foreign currency transactions in authorization of exchange counters in all hotels, major urban centers and other necessary places where foreign currency can be easily exchanged for Vietnamese currency.
Article 5
This decision shall take effect as from 1 October 1994. Provisions on foreign currency control stipulated in this Decision amend and supplement a number of points in Articles 7 and 9, Chapter II of Decree No. 161/HDBT of 18 October 1988; Article 1 of Decision No. 337/HDBT of 25 October 1991 of the Council of Ministers (now the Government) and points 1 and 2 of Instruction No 330/CT dated 13 September 1990 by the Chairman of the Council of Minister (now the Government Prime Minister). Other provisions in the above legal documents not contrary to this Decision remain valid and effective.
The Governor of the State Bank shall be responsible for organizing, directing the execution of this Decision.
Article 6
Ministers, heads of ministerial agencies, heads of agencies belonging the Government, chairmen of provincial/municipal People's Committees under central government are responsible for executing this Decision.
FOR THE GOVERNMENT DEPUTY PRIME MINISTER Phan Van Khai
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396-TTg
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Quyết định
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Thủ tướng Chính phủ
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Phan Văn Khải
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04/08/1994
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01/10/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 73-CP
Ha Noi, July 30, 1994
DECREE
ON DETAILED REGULATIONS ON THE IMPLEMENTATION OF THE ORDINANCE ON THE PRIVILEGES AND IMMUNITY OF DIPLOMATIC REPRESENTATIONS, FOREIGN CONSULATES, AND REPRESENTATIVE OFFICES OF INTERNATIONAL ORGANIZATIONS IN VIETNAM
THE GOVERNMENT
Proceeding from the Law on Organization of the Government on the 30th of September, 1992; Proceeding from the Ordinance on the Privileges and Immunity of Diplomatic Representations, Foreign Consulates and Representative Offices of International Organizations in Vietnam on the 23rd of August, 1993; At the proposal of the Minister of Foreign Affairs,
DECREES:
Chapter I
PROVISIONS ON THE PRIVILEGES AND IMMUNITY OF DIPLOMATIC REPRESENTATIONS AND FOREIGN CONSULATES IN VIETNAM
Article 1. - In conformity with Point 1, Article 2, of the Ordinance, the offices of diplomatic representations, the offices of foreign consulates and the residences of diplomats shall not be used as political asylum.
Article 2. -
1. The diplomatic representations and foreign consulates are permitted to install and use telecommunication equipment, specialized telecommunication networks and wireless transceivers only after they are licensed by the General Post Office of Vietnam. In case they import such information equipment for installation in Vietnam, they must apply for a permit from the General Post Office and the Ministry of Trade.
2. Under its sponsorship, the General Post Office of Vietnam will cooperate with the Ministry of Trade, the Ministry of Foreign Affairs, the Ministry of Culture and Information, and the Ministry of Interior to work out detailed regulations on the implementation of Point 1 of this Article.
Article 3. - When the need arises to open a consular bag as mentioned at Point 4, Article 25, of the Ordinance, the opening must be done in the presence of a representative of the foreign consulate concerned refuses to have it opened, the consular bag will be sent back to its place of origin.
Article 4. - In accordance with the laws of Vietnam currently in force, the Ministry of Trade will sponsor cooperative actions with the Ministry of Foreign Affairs, the Ministry of Finance and the General Department of Customs in working out detailed regulations on the categories and quantity of items to be imported and to be exempted from tax as well as the re-exportation and transfer of such items in Vietnam as mentioned at Article 6, 14, 15, 16, 17, 22, 26, 31 and 38 of the Ordinance concerning all the beneficiaries of the privileges and immunity mentioned in the Ordinance.
Article 5. -
1. The foreign diplomatic representations are obliged to notify the Ministry of Foreign Affairs of Vietnam the full names and positions of their officials who are assigned to perform the consular function.
2. In conformity with Point 2, Article 35 of the Ordinance, the sending country can assign a professional functionary of its consulate in Vietnam to perform a number of diplomatic activities after getting the approval of the Ministry of Foreign Affairs of Vietnam.
Article 6. -
1. The Ministry of Foreign Affairs of the sending country is obliged to notify in writing the Ministry of Foreign Affairs of Vietnam that the sending country has declared to renounce the privileges and immunity of the Chief of its diplomatic representation, including the Charge d/Affairs.
2. The Ministry of Foreign Affairs or the diplomatic representation of the sending country is obliged to notify in writing the Ministry of Foreign Affairs of Vietnam that the sending country has declared to renounce the privileges and immunity of the staff and personnel of the diplomatic representation, and of the Chief of the Acting Chief of the Consulate and its officials and personnel if the laws of the sending country so stipulate.
3. In case the sending country has only a consulate in Vietnam and if prior agreement has been reached with Vietnam, this Consulate can notify in writing the Ministry of Foreign Affairs of Vietnam that the sending country has declared to renounce the privileges and immunity of the officials and personnel of its Consulate.
Article 7. -
1. The diplomatic representation and the Consulate of the sending country are obliged to notify the Ministry of Foreign Affairs of Vietnam of the departure time from Vietnam of their officials and personnel after they have concluded their term of office.
2. The time limit set for the close relatives of an official or personnel of the diplomatic representation and the Consulate to leave Vietnam as mentioned at Point 2, Article 19, and Point 2, Article 34, of the Ordinance is 30 days from the day when the Ministry of Foreign Affairs of Vietnam is officially notified by the diplomatic representation and Consulate of the death of this official or personnel.
Chapter II
PROVISIONS ON THE PRIVILEGES AND IMMUNITY OF REPRESENTATIVE OFFICES OF INTERNATIONAL ORGANIZATIONS
Article 8. -
1. The international organizations belonging to the United Nations system as mentioned at Article 39 of the Ordinance are the United Nations, its affiliates and specialized organizations, and the international nuclear energy agency.
2. Vietnam grants privileges and immunity to the representative offices of international organizations mentioned at Point 1 of this Article, as well as the officials and personnel of these offices and members of their families living together with them in the same house, and the officials and personnel of those international organizations who visit or work in Vietnam or pass through Vietnam with a transit visa in accordance with the international treaties which Vietnam has signed or acceded to, and with international practice recognized by Vietnam:
- The 1946 Convention of the United Nations on privileges and immunity;
- The 1947 Convention on the privileges and immunity of the U.N. professional organizations;
- The 1959 Agreement on the privileges and immunity of the international nuclear energy agency;
- The agreements signed between the Vietnamese Government and each international organization on privileges and immunity.
Article 9. - The international treaties applicable to those mentioned at Article 40 of the Ordinance and to officials and personnel of those organizations who visit or work in Vietnam or pass through Vietnam with a transit visa are:
1. The Charter (or regulations, statute, founding agreement) of each inter-governmental organization to which Vietnam is a participant.
2. The agreement between the Vietnamese Government and each inter-governmental organization in which privileges and immunity are stipulated.
Article 10. - The representative offices of non-governmental organizations mentioned at Article 41 of the Ordinance, as well as their officials and personnel and members of their families living together with them in the same house, and officials and personnel of those organizations who visit or work in Vietnam or pass through Vietnam with a transit visa, are entitled to the privileges and immunity as mentioned in the agreements between the Vietnamese Government and each non-governmental organization.
Chapter III
PROVISIONS ON THE STATE MANAGEMENT IN THE IMPLEMENTATION OF PRIVILEGES AND IMMUNITY
Article 11. - The Ministry of Foreign Affairs has the task of exercising the following functions of State management:
1. Taking the initiative of proposing to the Government to negotiate, sign or accede to international treaties on the privileges and immunity of diplomatic representations and consulates, and the privileges and immunity of international organizations.
2. Making preparations for statutory provisions and other projects related to the implementation of the Ordinance and guidance and instructions on this implementation.
3. Settling affairs concerning the activities of diplomatic representations and foreign consulates, representative offices of international organizations and staff members of those organizations.
4. Managing the Vietnamese citizens working in the representative offices mentioned at Point 3 of this Article.
5. Cooperating with other public offices concerned to settle and handle any violations of the privileges and immunity of diplomatic representations, foreign consulates and representative offices of international organizations in Vietnam.
Article 12. - In submitting to the Government projects to negotiate, sign or accede to international treaties including articles on the privileges and immunities mentioned by the Ordinance, the ministries and branches must enclose the opinions of the Ministry of Foreign Affairs and other ministries and branches concerned.
Article 13. -
1. The Ministry of Foreign Affairs, the external relations service (or the external relations committee) of the provinces and cities directly under the Central Government should consider granting residence permits to the following foreigners whether they carry a diplomatic, service or ordinary passport:
a/ Officials and personnel of diplomatic representations, foreign consulates and representative offices of international organizations in Vietnam.
b/ Members of the families of the officials and personnel living together with them in the same house, and houseworkers of the officials of those organizations.
2. The following foreigners whether they carry a diplomatic, service or ordinary passport, are exempted from registering their residence with the Ministry of Foreign Affairs upon entering Vietnam, but need only a seal from the border security police permitting them to stay within the time mentioned by the entry and exit visas stated in the passport:
a/ Members of high-level foreign delegations and their entourages on working visits to Vietnam or in transit.
b/ Foreign visitors on working visits to diplomatic representations and representative offices of international organizations in Vietnam, as well as visitors to the officials and personnel of those organizations.
3. With regard to those mentioned at Point 2 of this Article who, if necessary, have the permission to extend their stay in Vietnam.
a/ The Ministry of Foreign Affairs will extend the entry and exit visas for those mentioned at Point 2 and of all those who carry a diplomatic or service passport, except when there is an agreement between Vietnam and the sending country on exemption of entry and exit visas.
b/ The Ministry of Interior will extend the entry and exit visas for those who carry an ordinary passport.
4. Those mentioned at Points 1 and 2 of this Article who want to come to an area with a "Forbidden Area" sign must apply for permission from the Ministry of Foreign Affairs of Vietnam.
Article 14. -
1. To create favorable conditions for the activities of the Chiefs of diplomatic representations (or the Chiefs of consulates if the sending country has no diplomatic representation) and representative offices of international organizations, these organizations are obliged to notify the Ministry of Foreign Affairs of Vietnam 72 hours before their Chief wishes to contact the local authorities.
2. In case a diplomatic representation, the representative office of an international organization or a foreign consulate organizes such official activities as reception, film show, press conference, traditional festival, seminar, get-together, etc. and invites Vietnamese citizens or needs assistance from the Vietnamese side, they are obliged to notify the Ministry of Foreign Affairs or the external relations service concerned at least 72 hours in advance.
Article 15. -
1. The diplomatic representations, foreign consulates and representative offices of international organizations in Vietnam can either through the Ministry of Foreign Affairs of Vietnam or directly request the Vietnamese public offices concerned to provide services concerning the office building, housing, electricity, water, medical care and other services.
2. When they need to recruit Vietnamese to work for them, the representative offices mentioned at Point 1 of this Article must comply with Vietnamese law on the recruitment of labor and must do it through the Ministry of Foreign Affairs of Vietnam.
Chapter IV
FINAL PROVISION
Article 16. - This Decree takes effect upon signing. All regulations made earlier which are contrary to this Decree are now annulled.
Article 17. - The Ministry of Foreign Affairs, the Ministry of Interior, the Ministry of Justice, the Ministry of Trade, the Ministry of Culture and Information, the General Department of Customs and the General Post Office in their capacity and authority are obliged to guide and organize the implementation of the Ordinance on the Privileges and Immunity of Diplomatic Representations, Consulates and Representative Offices of International Organizations in Vietnam and this Decree.
Article 18. - The ministers, heads of ministerial-level agencies and agencies attached to the Government, the presidents of the People's Committees of provinces and cities directly under the Central Government are responsible for implementing this Decree.
ON BEHALF OF THE GOVERNMENT FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Phan Van Khai
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73-CP
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Nghị định
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Chính phủ
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Phan Văn Khải
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30/07/1994
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30/07/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE PRIME MINISTER OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 350-TTg
Hanoi, July 08, 1994
DECISION
ON THE ESTABLISHMENT OF THE PEOPLE-SPONSORED PHUONG DONG UNIVERSITY
THE PRIME MINISTER
Pursuant to the Law on Organization of the Government issued on the 30th of September 1992; Pursuant to Decree No 15-CP issued on the 2nd of March, 1993 on the tasks, powers and responsibilities in State management of the ministries ministerial-level agencies; Based on the proposals of the Minister of Education and Training (No. 2460-TCCB of the 20th of April, 1994) and the Minister-Head of the Government Commission on Organization and Personnel.
DECIDES:
Article 1. - To establish the People-Sponsored Phuong Dong University.
Article 2. - The People-Sponsored Phuong Dong University is a training institute of university level under the State management of the Ministry of Education and Training. It is a legal entity and has its own seal and bank account.
The system of diplomas and certificates issued by the People-Sponsored Phuong Dong University belong to the national system of diplomas and certificates.
Article 3. - The People-Sponsored Phuong Dong University shall be organized and operate in compliance with law, the statute on people-sponsored universities and the specific regulations issued by the Minister of Education and Training.
Article 4. - The Minister of Education and Training, the other ministers, the heads of the agencies of ministerial level, the heads of the agencies attached to the Government, and the presidents of the People's Committees of the concerned provinces and cities directly under the Central Government are responsible for implementing this Decision.
FOR THE PRIME MINISTER DEPUTY PRIME MINISTER Nguyen Khanh
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350-TTg
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Quyết định
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Thủ tướng Chính phủ
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Nguyễn Khánh
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08/07/1994
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23/07/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE MINISTRY OF FINANCE THE MINISTRY OF TRANSPORTATION AND COMMUNICATIONS
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 59/TTLB
Hanoi, July 08, 1994
JOINT MINISTERIAL CIRCULAR
PROVIDING THE REGULATIONS FOR COLLECTION, MANAGEMENT AND USE OF THE TOLLS ON THE THANG LONG - NOI BAI EXPRESSWAY
In implementation of the decision of the Prime Minister contained in Note No 2950-KTTH of the 28th of May, 1994, on the collection of tolls on the Thang Long - Noi Bai Expressway, the Ministry of Finance and the Ministry of Transport and Communications jointly issue the following Circular on the regulations for collection, management and use of the tolls on the Thang Long - Noi Bai Expressway:
I. TOLL, EXEMPTION AND REDUCTION ON USERS OF THE THANG LONG-NOI BAI EXPRESSWAY
1. Taxable users:
All kinds of motor vehicles using the Thang Long-Noi Bai Expressway are subject to tolls, except for a number of vehicles provided for in Points 2 and 3 which shall be given toll exemption or reduction.
2. Tax-exempt users:
- Ambulances.
- Vehicles used in funeral (including the hearse and the vehicles carrying relatives of the deceased).
- Military vehicles which are not regularly used for economic duties.
- Police-escorted vehicles carrying foreign guests.
- Fire engines on duty.
- Vehicles specializing in transporting war invalids and crippled people.
- Vehicles in pursuit of law-breakers.
3. Users eligible for toll exemption and reduction:
a) Users eligible for toll exemption:
- Vehicles of diplomatic missions and representatives of international organizations permanently based in Vietnam and enjoying the diplomatic favor status (as endorsed by the Ministry for Foreign Affairs in Note No 1609-LT/HC of the 9th of September, 1991).
- Motor vehicles mobilized by authorized agencies for dike embankment duty and for combat against flood, typhoon, other natural calamities and sabotage acts.
b) Users eligible for toll reduction:
Motor vehicles of public employee, workers, learners and students daily commuting to work and school.
Applicants for toll exemption and reduction must produce proofs of their relevant status to the toll-collecting agencies for the issuance of toll-exempt cards or discount seasonal tickets.
II. TOLL RATES, COLLECTING MODES AND OPERATION
1. Rates:
In order to ensure the smooth collection of tolls and create convenience for vehicle passage through the expressway and bridge, the Ministries jointly provide that:
- Motor vehicles shall buy one ticket for passage of both the expressway and the bridge.
- Motor vehicles which pass only the bridge shall buy the ticket for the bridge only (as provided for in Circular No 81-TT/LB jointly issued on the 15th of December, 1992 by the Ministry of Finance and the Ministry of Transport and Communications).
- Motor vehicles which travel on the Thang Long-Noi Bai Expressway without passing the bridge shall buy the ticket for the expressway only.
Actual rates are prescribed for each category of users and listed in the appendix to this Circular.
2. Collecting modes:
The toll is collected in the forms of tickets which are in two categories, regular and seasonal. All tickets are issued by the Hanoi Tax Department and delivered to the toll-collecting units for sale.
- The regular ticket shall be sold to vehicles at ticket control stations.
The ticket can be sold in advance at the toll-collecting agency to vehicle owner and/or controllers who commute daily on the expressway and bridge. In this sale mode, a purchase of 50 tickets or more shall be given a 1% discount on each of the tickets.
- Seasonal tickets shall only be sold to those who are qualified for toll reduction as provided for in Point 3 of Part I.
The toll-collecting agency shall work with the Hanoi Tax Department to design and print tickets of different categories and toll-exemption badges. The control and use of the tickets are provided for in Circular No 63-TC/TCT issued by the Ministry of Finance on the 28th of October, 1992.
The toll-collecting agency shall maintain a close control over the process of ticketing and periodically report the work to the Hanoi Tax Department.
3. Collecting operation:
The unit in charge of collecting tolls on the North Thang Long-Noi Bai expressway is under the Vietnam Department of Land Roads. It is manned by a light staff and is to ensure that the toll collection is effective, civilized, not hindering the traffic flow, etc.
III. MANAGEMENT AND USE OF THE TOLL, ACCOUNTING AND FINANCIAL STATEMENT
1. Management and use of the toll:
On the basis of the variety of the vehicles on the expressway and the rates already fixed, the toll-collecting unit shall design a plan for the collection and its cost to submit to the Ministry of Transport and Communications for approval after consulting with the Ministry of Finance.
Everyday, except for the portion which is allowed to be kept according to the approved plan, the toll-collecting unit shall remit all the toll money to the State Budget through the State Treasury.
The expenditure plan comprises the following:
The wages and allowances for the collectors, expenditures on printing tickets and receipts, books and charts used in the control, management and accounting, expenditures on office and property maintenance and repair and other managerial costs.
All expenditures on the maintenance and repair of the expressway are allocated in the annual budget and shall be disbursed in accordance with existing regulations.
In the year of 1994, because the regular maintenance expenditure has not been included in the plan for repair of the expressway, the unit in charge shall draw up a plan for this expenditure to submit to the authorized offices for approval as addition to the expenditure plan for 1994.
2. Accounting and financial statement:
a) Accounting:
The toll-collecting unit shall open books recording generals and details of the collecting activities and use of the toll on the expressway and the bridge and make full accounts of revenues and expenditures according to the above regulations.
As regards the vehicle owner, if it is a production or business unit, the toll shall be included in the production or circulation costs; if it is an administrative unit, the toll shall be accounted for as budget expenditure.
b) Financial statement:
Every month, the toll-collecting unit shall file timely reports on the amount collected and its use (including remittances to the budget and withholdings for planned expenditures) to the Tax Department and State Treasury of Hanoi and send reports to the Ministry of Transport and Communications and the Ministry of Finance for record.
Every quarter and year, the toll-collecting unit shall file a financial statement on the collection and use of the toll in accordance with the current regulations on accounting.
The Ministry of Transport and Communications shall cooperate with the Ministry of Finance to provide regular control over the collection and use of the toll and review the annual financial statement of the toll-collecting unit.
IV. REWARDS AND SANCTIONS
- Any vehicle owner who violates the regulations on the toll collection such as using tickets not in accordance with the set rates, abstaining from buying tickets, etc. shall have, besides buying the toll ticket as required by the set rate, to pay a fine four times the ticket price (this fine shall not be included in the production cost or accounted in the budget expenditure). If he intentionally causes troubles and hinders the traffic, he shall be subjected to sanctions provided for by the law in force.
- To encourage toll-collection, the joint ministries allow the collecting unit it to put aside 1.5% of the total toll to set up a reward and welfare fund, but the reward fund shall not exceed three months of the basic salary of the staff. The maximum fund for welfare shall not exceed the fund for reward. The rest shall be remitted to the State Budget.
V. IMPLEMENTATION
This Circular takes effect as from the 1st of July, 1994.
In the course of its implementation, any issues which arise and require adjustments and changes shall be reported by the toll-collecting unit to the two ministries for a solution.
Le Ngoc Hoan
(Signed)
TOLL RATES
ON USE OF THE THANG LONG-NOI BAI EXPRESSWAY AND THE EXPRESSWAY AND BRIDGE
(Issued as appendix to Joint Circular No 59-TT/LB of the 8th of July, 1994 of the Ministry of Finance and the Ministry of Transport and Communications)
Toll Payers
Rates for use of the Thang Long-Noi Bai Expressway (in VND)
Rates for use of the expressway and bridge (In VND)
1. Motocycles (all kinds)
500 per ride
1000 per ride
2. Motorcycles of daily commuters qualified for discount tickets
5, 000 per month
10, 000 per month
3. Small cars (all kinds)
5, 000 per ride
10, 000 per ride
4. Sedans and coaches (all kinds):
- Below 12 seats:
- From 12 to 49 seats:
- Above 50 seats:
- Bus:
5, 000 per ride
8, 000 per ride
10, 000 per ride
4, 000 per ride
10, 000 per ride
16, 000 per ride
20, 000 per ride
8, 000 per ride
5. Trucks (all kinds):
- Below 4 tons:
- From 4 to 10 tons:
- Above 10 tons:
8, 000 per ride
10, 000 per ride
15, 000 per ride
16, 000 per ride
20, 000 per ride
30, 000 per ride
6. Three-wheeled vans and Bong Sen tractors
2, 000 per ride
4, 000 per ride
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59-TT/LB
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Thông tư liên tịch
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Bộ Giao thông vận tải, Bộ Tài chính
|
Lê Ngọc Hoàn, Phan Văn Trọng
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08/07/1994
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01/07/1994
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Đang cập nhật
|
Đang cập nhật
|
Còn hiệu lực
| null |
THE OFFICE OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No: 96/BT
Hanoi, May 31, 1994
CIRCULAR
FOR GUIDING THE IMPLEMENTATION OF THE GOVERNMENT RESOLUTION No. 38/CP ON INITIAL REFORM OF ADMINISTRATIVE PROCEDURES IN THE SOLUTION OF CITIZEN AND ORGANIZATION AFFAIRS
On the 4th of May 1994, the Government issued Resolution No. 38/CP on initial reform of administrative procedures in the solution of citizen and organization affairs. This Circular provides guidance in some organizational matters for the deployment and implementation of the above Resolution.
I. NECESSITY, OBJECTIVE AND REQUIREMENT OF THE RESOLUTION
Administrative procedures are the basis and necessary conditions for the State agency to solve matters of citizens and organizations according to the law, assuring the legitimate rights and interests of people and agency having affairs to be settled. At present, administrative procedures issued by State agencies at different echelons are very discursive, unclear, lack uniformity and publicity and can change at will at any moment. Such administrative procedures bother the people and reduce their confidence in the Stage agency, create obstacles to relations and cooperation between our people and foreigners, generate arrogance, harassment, corruption and other negative acts. The Government Resolution No 38/CP sees the initial reform of administrative procedures as a pressing demand of the State and people, as one of the central tasks of ministries, branches and localities from now to the end of 1994, as the beginning of the national administrative reform.
The objective and requirement of the initial reform of administrative procedures is to effect a basic change in the relationship of procedures in the settlement of citizen and organization affairs. More concretely, there should be discovery and elimination of those uneven, overlapping, rambling and complicated administrative measures which have caused hindrances to the reception and settlement of affairs among State agencies themselves, between the State agencies and citizens and organizations. There must be procedures which help solve matters in a simple, clear, uniform, law-abiding and open way, both providing convenience to citizens and organizations who need settlement of their affairs and having the effect to curb bureaucracy, harassment and corruption of the State officials, the same time assuring the responsibility of State management, maintenance of discipline and law.
II. THINGS TO BE DONE FOR IMPLEMENTATION OF THE RESOLUTION
1. To publicize and popularize the Resolution:
The ministries, branches at the central level, local People's Committees have the responsibility of, in all appropriate forms, organizing the publication and popularization of the Government Resolution, making all agencies, organizations and citizens aware of the necessity, objective, requirement and content of the Resolution, for everyone to act according to the Resolution.
The publication and popularization of the Resolution should be done permanently and continuously, in all practical forms and measures, with a view to encouraging and stimulating each agency, organization and citizen to actively participate in the reform of administrative procedures, avoiding both costly ostentation and formalistic rituals without caring for effect.
At the Office of the Government Cabinet, ministries, ministerial level agencies, Government agencies, province and city people's committees and other agencies from the central echelon to the grass-roots, letter boxes must be made available for organizations and citizens to express their opinions concerning the implementation of the Government Resolution No 38/CP.
The mass media should have special sections to permanently and continuously report on the reforms of administrative procedures, create conditions for organizations and citizens to carry out and supervise the implementation of the Resolution through appropriate forms like: putting forward recommendations for the competent agency to consider, amend, complete or abolish inappropriate procedures and fees; praising those agencies, organizations and individuals that performs well the reform of administrative procedures, resolve well matters of citizens and organizations; report on and criticize those State agencies and officials who are sluggish or conservative, who are sluggish or conservative, who are reluctant to reform the administrative procedures which cause harassment to the people, who behave arrogantly, who demand and receive bribes, hassle people, and criticizing those acts of misusing the fight against intricated procedures to commit wrongdoings.
2. Organizing the revision of administrative procedures:
The ministers, head of ministerial level agencies, Government agencies, Chairmen of the People Committee of provinces and cities directly under the Central Government and heads of other State agencies from the central level to the grassroots, within the scope of their competence, are responsible to revise all administrative procedures and fees in force.
A- REVISION OF PROCEDURES IN THE SETTLEMENT OF MATTERS AMONG STATE AGENCIES:
The revision and the discovery of regulations which are unlawful or too intricated and need to be abolished must be based on the working regime provided by the Law on Organization of People's Council and People's Committee and other juridical documents issued by the Government. Those problems which require new regulations or those administrative procedures which though still appropriate are scattered in too many documents should now be integrated into one documents for an easier implementation. The key points for revision, apart from what has been mentioned in Article 1 of Resolution No. 38/CP, should also focus on the following procedures:
1. To prepare and issue decisions: it is essential to avoid delays or lack of precision, lack of coordination, lack of comprehensiveness, lack of unity, contradictions, overlapping or not conforming to the competence or reality.
2. To decide on matters according to competence and responsibility: not to arbitrarily decide on matters which lie beyond one's competence, nor shirk one's responsibility and competence by referring to the upper echelon for opinion concerning matters belonging to one's own responsibility and competence. The upper echelon shall not decide on matters pertaining to the responsibility and competence of the lower echelon.
3. The process of settling matters within the responsibility and authority of the agency concerned: we should avoid situations in which an agency, organization or citizen which needs a solution to its problems has to knock at many doors, to go through many departments of the same agency before the affair is solved, or, because of dispersion of organizations no one is the chief responsible person so that the lower echelon can dodge control and solve it in its own way.
4. Meeting for discussion and solution of matters: We must avoid too many meetings to handle an affair which finally is decided in an unclear, undefinitive and even contradictory way.
B. REVISION OF ADMINISTRATIVE PROCEDURES IN THE SETTLEMENT OF CITIZEN AND ORGANIZATION AFFAIRS:
1. State administrative agencies from the central level to grassroot level (communes, wards etc. ) within their own competence should organize the complete revision of administrative procedures being applied for the settlement of citizen and organization matters. In the immediate future, the revision of procedures should focus on problems related to the life and daily affairs of citizens and organizations such as:
- Procedures on issuance of licenses on export, import and transit of goods, of exit-entry permits and various procedures on customs and control at airports, seaports, border-posts, on investment and issuance of investment licenses, on appraisal of investment projects, joint ventures with foreign countries, renting houses, land and residing places for foreigners.
- Procedures on issuance of business licenses, applications for building, transformation, repair, renting, sale and purchase, transfer of houses, for land use, transfer and inheritance of land use right.
- Procedures on notary public attestations, issuance of residence permits, school application, medical consultation and treatment at hospitals, registration of ownership and issuance of permits for utilization of motor vehicles; registration of property dealings, capital loan, business inspection, forest control, market control, traffic order and means of goods transportation.
- Besides procedures defined in written documents, special attention should be paid to those procedures which though not recorded into written documents are applied in practice.
2. Together with the revision of procedures on settlement of citizen and organization matters, there should be revision of the following matters:
- The correct execution of the laws of the State. Immediate abolition of fees levied by the non-competent echelons (mentioned in Decision No. 276/QD on 28th of July 1992).
- The organization of receiving people, receiving and solving people's affairs: at the places for receiving the people, there should be a board publicizing the procedures for the solution of each kind of affairs, necessary documents to be provided and time-limit for their solution. Any affair that requires a fee should be publicly notified. If the affair is related to several departments of the agency, a more rational line should be established to spare the solicitor from going through several doors and several departments of the agency before the affair could be solved. Wherever solicitors come in great numbers, the agency should increase its personnel to handle the volume and should not let people wait long. Those assigned with the task of receiving people should dress correctly, wear their name cards with photos and positions. At the desk, there should be a board with name and position of the person assigned to deal with people's affairs. The person receiving and dealing with people's affairs has the responsibility of accepting people's affairs has the responsibility of accepting people's papers for their solution according to the defined authority and time. If time is needed for consideration, there must be an appointment sheet for the date of solution. If the person receiving the solicitors is not qualified in behavior or level, another person should be immediately appointed as substitute.
3. All administrative and fee procedures during the revision must be based on the laws of the State and regulations to this effect mentioned in Article 3 of Resolution No. 38/CP and Decision No. 276/QD for analysis, assessment and classification:
- Kind of procedure to be abolished: administrative and fee procedures issued by non competent echelons, or issued by competent echelons but inconsistent with the law or no longer appropriate to reality, for causing inconvenience to organizations and citizens.
- Kind of procedures to be amended: procedures issued according to competence and conforming to managerial function but with confused and complicate contents or the fees are too high (such as abolishing a number of "doors" or a number of papers, reducing the fee level. . . ).
- Kind of procedures to be legalized: procedures previously issued by the non-competent echelons (compared with the stipulations in Article 3 of Resolution No. 39/CP) but now considered necessary. They should be reported to the competent echelon for their legalization.
- Kind of procedures to be unified into one document: necessary procedures issued by the right authority but are scattered in several documents. They now need to be unified into one document for easier comprehension and uniform implementation.
- Kind of procedures to be kept intact: Procedures issued by competent authorities, their contents still conform to reality, their wording is simple and clear, easily understood by everybody and easily executed in a unified way.
The examination to decide with paper procedures and which fees are to be abolished, amended or kept intact, should be done carefully and democratically, combining the opinions of the agency, the responsible cadre and the organization or citizen affected by those procedures. The exchange of opinions can be made in one of these forms: direct exchange, contribution by mail, meeting or publication on the press of some procedures expected to be abolished, amended or replaced for discussion by the agency which organizes the revision or by a competent echelon which sets administrative procedures so that an appropriate way can be found.
4. Competence in settlement of classified administrative procedures: The ministers, heads of ministerial-level agencies, Government agencies with State management function are responsible of settling administrative procedures on problems pertaining to their branches and domains. Those administrative procedures related to several ministries and branches should be discussed and agreed upon between the directly responsible ministry and branch and related ministries and branches for their issuance by inter-ministerial decision. If the minister, head of branch management agency at the central level accredit it to the Chairman of the People's Committee in the province or city directly under the Central Government to define some procedures, the latter shall consider and decide.
The Prime Minister examines and decides on the settlement of administrative procedures issued by the Government and the Prime Minister; examines and proposes to the National Assembly Standing Committee the settlement of administrative procedures issued by the National Assembly and the National Assembly Standing Committee.
In this drive of revision, the settlement of administrative procedures according to the above classification or the defining of some procedures accredited to the Chairmen of the People's Committees in the provinces or cities directly under the Central Government, by ministries, ministerial level agencies, Government agencies, should be reported to the Government cabinet and concurrently sent to the Ministry of Justice to consult them before implementation.
Agencies having no competence of issuing administrative procedures (according to regulations in Article 3 of Resolution No. 38/CP) may propose the upper echelon to settle those administrative procedures which though being implemented by themselves but have been seen as irrational and need to be complemented, amended or abolished. If such procedures now need to be abolished, these agencies can do it themselves and report to the upper echelon without having to wait for the upper echelon to abolish them.
5. After the competent echelons have decided or approved the method of settlement, the readjusted procedures and fees must be publicized. During the revision of the administrative procedures, agencies and cadres having the responsibility of settling affairs of organizations and citizens should continue to assure normal conditions of their work and no one is allowed to act contrary to the procedure pending the publication of new regulations by the competent agency.
III. ORGANIZATION OF IMPLEMENTATION
A - STEPS TO BE TAKEN:
1. Thirty days of receiving this Circular, the ministries, ministerial level agencies, Government agencies, the Chairmen of the People's Committees of provinces and cities directly under the Central Government should complete and send their reports to the Minister of Justice, the Minister - Chairman of the Government Commission on Organization and Personnel, the State General Inspector and the Minister of Finance on their plan for implementation of Resolution No. 38/CP with the following main contents:
- The way of organizing the publication and popularization of Government Resolution No. 38/CP and their result.
- Plan for the implementation of Resolution No. 39/CP in the ministry, branch and locality.
- List of questions where procedures have been instituted with priority given to those to be examined and revised in the last months of 1994.
Reports and implementation plans by the People's Committees of provinces and cities directly under the Central Government should be sent to the Government cabinet and related branch managing ministry five days earlier than schedule for these agencies to synthetize them.
2. Until before the 30th of September, 1994, ministries, ministerial level agencies, Government agencies, People's Committees of provinces and cities directly under the Central Government send to the Prime Minister summarized reports on implementation of Resolution No. 38/CP and expectation of matters to be done until the end of 1994.
Until before the 20th of December 1994, these agencies shall have sent to the Prime Minister summarized reports on the implementation of Resolution No. 38/CP in 1994 and projected questions to be carried on in 1995.
These reports, apart from mentioning the result of revision and settlement of administrative procedures, should put forward recommendations on organization reshuffle and working method resulting from the procedures revision.
B. ORGANIZATION OF DIRECTION AND IMPLEMENTATION:
1. The responsibility of organizing the direction and implementation of Resolution No. 38/CP belongs to the ministers, heads of ministerial level agencies, Government agencies, Chairmen of the People's Committees of provinces and cities directly under the Central Government.
The Minister-Director of the Office of the Government, the Minister of Justice, the Minister-Chairman of the Government Commission on Organization and Personnel, the Minister of Finance and the State General Inspector, besides their responsibility of organizing the direction and implementation of the Resolution on problems under their own jurisdiction like the other ministries, have the task of helping the Prime Minister to monitor and stipulate the ministers, branches and local people's committees in the implementation of Resolution No. 38/CP.
2. Setting up two inter-ministerial working teams presided over by the Office of the Government to help the Government step up and supervise the implementation of this Resolution, and together with other agencies to directly take in charge of examinating and improving some important and pressing administrative procedures in some ministries and in two cities, Hanoi and Ho Chi Minh city.
The members of these teams shall include cadres of department or equivalent level, appointed and assigned by the Minister-Director of the Office of the Government, the Minister of Interior, the Minister of Justice, the Minister of Finance, the State General Inspector and the Minister-Chairman of the Government Commission on Organization and Personnel.
In ministries, ministerial level agencies, Government agencies and the People's Committees of provinces and cities directly under the Central Government, the People's Committee of different echelons, apart from appointing a deputy head to take charge of this work should organize a section (with a composition similar to that mentioned above) to help the agency head to permanently monitor, stipulate and supervise the implementation of this Resolution.
The above are instructions on things to be done for the implementation of the Government Resolution No 38/CP. In the process of implementation, if any problem arises and needs further instruction, let the agencies report them to the Office of the Government for additional examination and settlement.
THE MINISTER-DIRECTOR OF THE OFFICE OF THE GOVERNMENT Le Xuan Trinh
|
96-BT
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Thông tư
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Văn phòng Chính phủ
|
Lê Xuân Trinh
|
31/05/1994
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15/06/1994
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Đang cập nhật
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Đang cập nhật
|
Còn hiệu lực
| null |
AGREEMENT
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF REPUBLIC OF KOREA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Socialist Republic of Vietnam and
The Government of the Republic of Korea,
Dering to conclude an Agreement for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income,
Have agreed as follows:
Article 1. PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises as well as taxes on capital appreciation.
3. The existing taxes to which the Agreement shall apply are in particular:
a. in the case of Vietnam:
(i) the personal income tax;
(ii) the profit tax; and
(iii) the profit remittance tax,
(hereinafter referred to as "Vietnamese tax");
b. in the case of Korea:
(i) the income tax;
(ii) the corporation tax; and
(iii) the inhabitant tax,
(hereinafter referred to as "Korean tax").
4. The Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in their respective taxation laws.
Article 3. GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
a. the term "Vietnam" means the Socialist Republic of Vietnam; when used in a geographical sense, it means all its national territory, including its territorial sea and any area beyond its territorial sea, within which Vietnam, by Vietnamese legislation and in accordance with international law, has sovereign rights of exploration for and exploitation of natural resources of the sea-bed and its sub-soil and superjacent water mass;
b. the term "Korea" means the territory of the Republic of Korea including any area adjacent to the territorial sea of the Republic of Korea which, in accordance with international law, has been or may hereafter be designated under the laws of the Republic of Korea as an area within which the sovereign rights of the Republic of Korea with respect to the sea-bed and sub-soil and their natural resources may be exercised;
c. the terms “a Contracting State" and "the other Contracting State" mean Vietnam or Korea, as the context requires;
d. the term "tax" means Vietnamese tax or Korean tax, as the context requires;
e. the term "person" includes an individual, a company and any other body of persons;
f. the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
g.the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
h. the term "nationals" means:
(i) all individuals possessing the nationality of a Contracting State;
(ii) all legal person, partnership and association deriving its status as such from the laws in force in a Contracting State;
i.the term “international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
j. the term "competent authority" means:
(i) in the case of Vietnam, the Minister of Finance or his authorized representative; and
(ii) in the case of Korea, the Minister of Finance or his authorized representative.
2. As regards the application of the Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the laws of that State concerning the taxes to which the Agreement applies.
Article 4. RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of head or main office, place of management or any other criterion of a similar nature.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
a. he shall be deemed to be a resident of the State in which he has a permanent home available to him. If he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
b. if the Contracting State in which he has his centre of vital interests can not be determined, or if he has no permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
c. if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
d. if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated. In case of doubts, the competent authorities of the Contracting States shall settle the question by mutual agreement.
Article 5. PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop; and
f. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
3. A building site or construction or installation project constitutes a permanent establishment only if it lasts more than six months.
4. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a. the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise;
b. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display;
c. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d. the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
e. the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f. the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e), provided that the overall activity of the fixed place of businesss resulting from this combination is of a preparatory or auxiliary character.
5. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, - provided that such persons are acting in the ordinary course of their business.
7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6. INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships, boats and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7. BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it was a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
6. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. SHIPPING AND AIR TRANSPORT
1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that Contracting State.
2. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
Article 9. ASSOCIATED ENTERPRISES
Where
a. an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b. the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
Article 10. DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed 10 per cent of the gross amount of the dividends.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividents are paid.
3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate right is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
Article 11. INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and derived by the Government of the other Contracting State including political subdivisions and local authorities thereof, the central bank of that other Contracting State or any financial institution performing functions of a governmental nature of by any resident of the other Contracting State with respect to debt-claims guaranteed or indirectly financed by the Government of that other Contracting State including political subdivisions and local authorities thereof, the central bank of that other Contracting State or any financial institution performing functions of a governmental nature shall be exempt from tax in the first-mentioned Contracting State.
4. For the purpose of paragraph 3, the terms "the central bank and any financial institution performing functions of a governmental nature" mean:
a. in the case of Vietnam:
(i) the State Bank of Vietnam;
(ii) the bank for Foreign Trade of Vietnam (Vietcombank) and such other financial institution performing functions of a governmental nature as may be specified and agreed upon in letters exchanged between the competent authorities of the Contracting States;
b. in the case of Korea:
(i) the Bank of Korea;
(ii) the Export-Import Bank of Korea, the Korea Development Bank and such other financial institution performing functions of a governmental nature as may be specified and agreed upon in letters exchanged between the competent authorities of the Contracting States.
5. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and, in particular, income from Government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures.
6. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
7. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political sub-dividion, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
8. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other persons, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that Contracting State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed:
a. 5 per cent of the gross amount of the royalties in respect of payments of any kind received as a consideration for the use of, or the right to use, any patent, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience;
(b) 15 per cent of the gross amount of the royalties in all other cases.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 13. CAPITAL GAINS
1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
3. Gains from the alienation of ships or aircraft operated in international traffic, or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in the Contracting State of which the enterprise is a resident.
4. Gains from the alienation of shares of the capital stock of a company the property of which consists directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State.
5. Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3 shall be taxable only in the State of which the alienator is a resident.
Article 14. INDEPENDENT PERSONAL SERVICES
1. Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other Contracting State but only so much of it as is attributable to that fixed base.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 15. DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a. the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period, and
b. the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
c. the remuneration is not borne by a permanent establishment or a fixed base which the employer has on the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State shall be taxable only in that State.
Article 16. DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.
Article 17. ARTISTES AND SPORTSMEN
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsman are exercised.
3. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, income derived by entertainers or sportsmen who are residents of a Contracting State from the activities exercised in the other Contracting State under a special programme of cultural exchange agreed upon between the Governments of both Contracting States, shall be exempt from tax in that other State.
Article 18. PENSIONS
Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only on that State.
Article 19. GOVERNMENT SERVICE
1. a. Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2. a. Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
3. The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
4. The provisions of paragraphs 1 and 2 of this Article shall likewise apply in respect of remuneration or pensions paid by:
a. in the case of Vietnam:
the State Bank of Vietnam, the Bank for Foreign Trade of Vietnam (Vietcombank), the Vietnamese Chamber of Commerce and Industry and other institutions performing functions of a governmental nature as may be specified and agreed upon in letters exchanged between the competent authorities of the Contracting States;
b. in the case of Korea:
the Bank of Korea, the Export-Import Bank of Korea, the Korea Development Bank, the Korea Trade Promotion Corporation and other institutions performing functions of a governmental nature as may be specified and agreed upon in letters exchanged between the competent authorities of the Contracting States.
Article 20. STUDENTS
1. Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first-mentioned Contracting State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
2. Notwithstanding the provisions of Article 15, remuneration for services rendered by a student or a business apprentice in a Contracting State shall not be taxed in that State, provided that such services are in connection with his studies or training.
Article 21. PROFESSORS AND TEACHERS
An individual who is or was a resident of a Contracting State immediately before making a visit to the other Contracting State, who, at the invitation of any university, school or other similar educational institution, which is recognized as non-profitable by the Government of that other State, visits that other Contracting State for a period not exceeding two years from the date of his first arrival in that other State, solely for the purposes of teaching or research or both as such educational institution shall be exempt from tax in that other State on his remuneration for such teaching or research.
Article 22. OTHER INCOME
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2. The provisions of paragraph 1 shall not apply to income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
Article 23. METHODS FOR ELIMINATION OF DOUBLE TAXATION
1. In the case of a resident of Vietnam, double taxation shall be eliminated as follows:
Subject to the provisions of the law of Vietnam which relate to the allowance of a credit against Vietnamese tax of tax paid in a country outside Vietnam (which shall not affect the general principle of this Article), Korean tax payable under the law of Korea and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a resident of Vietnam from sources within Korea shall be allowed as a credit against Vietnamese tax payable in respect of that income. The credit shall not, however, exceed the Vietnamese tax as computed by reference to the same income before the credit is given.
2. In the case of a resident of Korea, double taxation shall be eliminated as follows:
Subject to the provisions of the Korean tax law regarding the allowance as a credit against Korean tax of tax payable in any country other than Korea (which shall not affect the general principle hereof), the Vietnamese tax payable (excluding, in the case of dividends, tax payable in respect of the profits out of which the dividends are paid) under the laws of Vietnam and in accordance with this Agreement, whether directly or by deduction, in respect of income from sources within Vietnam shall be allowed as a credit against Korean tax payable in respect of that income. The credit shall not, however, exceed that proportion of Korean tax which the income from source within Vietnam bears to the entire income subject to the Korean tax.
3. For the purposes of credit referred to in paragraph 2, the term "Vietnamese tax payable" shall be deemed to include the amount of Vietnamese tax which, under the laws of Vietnam and in accordance with this Agreement, would have been payable had the Vietnamese tax not been exempted or reduced in accordance with:
a. the provisions of Articles 26, 27, 28, 32 or 33 of the Law on Foreign investment in Vietnam 1987 as amended from time to time and connected regulations, as are effective on the date of signature of this Agreement as have been modified only in minor aspects after the date of signature of this Agreement; or
b. any other special incentive measures designed to promote economic development in Vietnam which may be introduced hereafter in modification of or in addition to, the existing laws, as may be agreed between the competent authorities of the Contracting States.
4. For the purpose of Korean tax credit referred to in paragraph 2, the Vietnamese tax payable shall, irrespective of the amount of tax actually paid, be deemed to be, in the case of:
a. dividents or interest, 10 per cent of the gross amount of the dividends or interest derived from sources within Vietnam; and
b. royalties, 15 per cent of the gross amount of the royalties derived from sources within Vietnam.
5. The provisions of paragraphs 3 and 4 of this Article shall apply only during a period of ten years starting from the first day of the calendar year next following that in which this Agreement enters into force in accordance with the provisions of Article 28. The period of application may be extended by mutual agreement between the competent authorities of the Contracting States.
Article 24. NON-DISCRIMINATION
1. The nationals of a Contracting State shall not be subject in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.
2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
3. Except where the provisions of Article 9, paragraph 8 of Article 11, or paragraph 6 of Article 12 apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected.
5. The provisions of paragraphs 2 and 4 of this Article shall not apply to the Vietnamese profit remittance tax, which in any case shall not exceed 10 per cent of the gross amount of profits remitted, and the Vietnamese taxation in respect of oil exploration or production activities or in respect of agricultural production activities.
6. Nothing contained in this Article shall be construed as obliging either Contracting State to grant to individuals not resident in that State any of the personal allowances, reliefs and reductions for tax purposes which are granted to resident individuals.
7. The provisions of this Article shall apply only to taxes covered by this Agreement.
Article 25. MUTUAL AGREEMENT PROCEDURE
1. Where a person who is resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, of this case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Agreement.
3. The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach agreement to have an oral exchange of opinions, such exchange may take place through a Commission consisting of representatives of the competent authorities of the Contracting States.
Article 26. EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution is respect of, or the determination of appeals in relation to, the taxes covered by the Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. In no case shall the provisions of paragraph 1 of this Article be construed so as to impose on a Contracting State the obligation:
a. to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b. to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c. to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
Article 27. DIPLOMATIC AGENTS AND CONSULAR OFFICERS
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article 28. ENTRY INTO FORCE
1. Each of the Contracting States shall notify to the other Contracting State the completion of the domestic procedures required by its law for entering into force of this Agreement. This Agreement shall enter into force 30 days after the later of these notifications.
2. This Agreement shall have effect:
a. in respect of taxes withheld at source, on amount paid or credited to non-residents on or after the first day of January of the calendar year next following that in which this Agreement enters into force; and
b. in respect of other taxes, for taxation years beginning on or after the first day of January of the calendar year next following that in which this Agreement enters into force.
Article 29. TERMINATION
This Agreement shall remain in force indefinitely but either of the Contracting State may, on or before the thirtieth day of June in any calendar year from the fifth year, following that in which this Agreement enters into force, give to the other Contracting State, through diplomatic channels, written notice of termination and, in such event, this Agreement shall cease to have effect:
a. in respect of taxes withheld at source on amounts paid or credited to non-residents on or after the first day of January in the calendar year next following that in which the notice of termination is given; and
b. in respect of other taxes for taxation years beginning on or after the first day of January of the calendar year next following that in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Hanoi this 20th day of May of the year one thousand nine hundred and ninety-four in the Vietnamese, Korean and English languages, all texts being equally authentic. In case of divergency of interpretation, the English text shall prevail.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM Ho Te Minister Of Finance
FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA Han Sung – Joo Minister Of Foreign Affairs
This Agreement entered in to force on 11th September 1994
PROTOCOL
At the moment of signing the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the Republic of Korea for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, the undersigned have agreed that the following provisions shall form an integral part of the Agreement.
1. In respect of the profit remittance tax in paragraph 3 (a) (iii) of Article 2 "Taxes Covered" it is understood that the remitted profit which is liable to above mentioned tax in Vietnam will be taxed only in accordance with paragraph 2 of Article 10.
2. In respect of paragraph 4 (b) (ii) of Article 11 "Interest" and paragraph 4 (b) of Article 19 "Government Service" it is understood that the Export-Import Bank of Korea is a government-invested bank which is established by the "Export-Import Bank of Korea Act" to promote, in close conformity with government policies, the sound development of the national economy and economic cooperation with foreign countries by extending the financial aid required for export and import transactions, overseas investment and the development of natural resources abroad, and is operated under the control and supervision of the Korean Government. It is also understood that the Korea Development Bank is a government-owned bank which is established by the "Korea Development Bank Act" to furnish and administer funds, in close conformity with government policies, for the financing of major industrial projects in order to expedite industrial development and expansion of the national economy, and is operated under the control and supervision of the Korean Government. Furthermore, the above two banks do not receive deposits from the public. It is therefore understood that, all these being taken into account, these two banks perform functions of a governmental nature and distinctively differ from commercial banks in these respects.
3. In respect of Article 24 "Non - discrimination", it is understood that, if a Contracting State hereinafter concludes or has already concluded with any other country a tax treaty of which the non-discrimination provisions are less discriminatory to a resident of the other Contracting State than the current provisions of non-discrimination of this Agreement, the first-mentioned provisions shall be applied promptly in place of the last-mentioned provisions.
IN WITNESS WHEREOF, the undersigned have signed this Protocol which shall have the same force and validity as if it were inserted word by word in the Agreement.
DONE in duplicate at Hanoi this 20th day of May of the year one thousand nine hundred and ninety-four in the Vietnamese, Korean and English languages, all texts being equally authentic. In case of divergency of interpretation, the English text shall prevail.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM Ho Te Minister Of Finance
FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA Han Sung – Joo Minister Of Foreign Affairs
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Đại hàn dân quốc
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Hồ Tế, Han Sung-Joo
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20/05/1994
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11/09/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE MINISTRY OF FINANCE
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness
No. 40-TC/GTBD
Hanoi, April 25, 1994
CIRCULAR
REGULATIONS ON COLLECTING AND UTILIZING THE REVENUE SOURCE OF COMMERCIAL JURISDICTION IN AIR TRANSPORTATION
Pursuant to Article 58, chapter V of the Law on Vietnam Civil Aviation Pursuant to Decree No 242/HDBT dated 30 June 1992 of the Council of Ministers (now, the government) on the establishment of the Vietnam Civil Aviation Department. On the basis of the aviation treaties signed between the Government of the Socialist Republic of Vietnam and the Governments of other countries. To solely manage and utilize the revenue source of commercial jurisdiction in air transportation from the foreign Airlines concerned, the Ministry of Finance hereby stipulates the following regulations:
I. GENERAL PROVISIONS
1/ Revenue source of commercial jurisdiction represents a state owned revenue, arising from the imbalance of transportation between foreign airlines which are appointed to fly in partnership with domestic Airlines or from the implementation of air transport treaties and agreements that Vietnam has signed with the foreign countries, or in cases that irregular flights of foreign Airlines are entitled to fly or out of Vietnam.
2/ To protect the interest of the state and the branch as well, the Vietnam Civil Aviation Department is responsible for giving instructions to the domestic Airlines on collecting revenue of commercial jurisdiction from the foreign Airlines concerned.
II. CONCRETE PROVISIONS
1/ Objects of commercial jurisdiction payment
Objects having to pay for commercial jurisdiction include:
- The foreign Airlines which are appointed to fly in partnership with Vietnam Airlines, carrying passengers, luggage and cargo between two countries during the implementation of an Air-transportation agreement.
- Regular flights of foreign Airlines, carrying passengers, luggage and cargo from Vietnam to the third country or returning from the there in accordance with a governmental agreement but not basing on the principle of balanced exchange of tonnage with Vietnamese Airlines.
- Leasing flights, except that of humanity character such as carrying the sick people, the repatriating people, etc.
2. Volume of payments for commercial jurisdiction
The Head of Vietnam Civil Aviation Department shall consider and make his decision on the volume of payments for commercial jurisdiction or he may trust the domestic airlines to hold the talk on this issue with the foreign counterparts. The obtained agreement must be submitted to the Head of Vietnam Civil Aviation Department for approval.
3. Revenue source of commercial jurisdiction management:
a/ The appointed domestic Airlines shall, on the basis of the volume of payments to be applied to the foreign Airlines approved by the Head of Vietnam Civil Aviation Department, assume the direction of collecting the payment, opening the book-keeping register to keep business account of the revenue of commercial jurisdiction in compliance with the valid at present provisions of the Ordinance on Accounting and the statistics, making payment registration at the local tax office.
b/ Revenue source of commercial jurisdiction shall be allocated as follows:
- At maximum 10% the total revenue shall be spent for covering the expenses of related operation such as : holding the talks, communication and information, stationary, management fee, booking, calculating and controlling the allocated revenue, etc.
Along with the accounting of transportation cost, the domestic airlines have to conduct the separated accounting of the expenditure, arising directly from the collection of this revenue.
- 4% of the total revenue shall be deducted to the reward fund of domestic Airlines. But the volume of this fund, including bonus from the profits of air transportation business and that from the source of commercial jurisdiction, must not exceed the limit as stipulated at present for the state-run enterprises.
- The remainder (after covering the expenditures and being deducted to the reward fund) shall go to the State budget through a system of treasury where the Airlines had its head office.
c/ Every month and not later than the 5th, the Airlines must draw up a payment slip in a generally established from and submit it to the local tax office, the last shall be responsible for co-ordinating with the Airlines and supervising them to pay the revenue of commercial jurisdiction to the State budget.
Every year, along with approving the Airlines' balance sheet of production and business. The figures of receipts, allowable expenditure and payment to the State budget. From the revenue source of commercial jurisdiction shall be stated.
III. PROVISION FOR IMPLEMENTATION
This circular shall go into effect from 01 January 1994. If any problem arise from the implementation, it is proposed to report to the Ministry of Finance in time for studying and making adjustment.
FOR THE MINISTRY OF FINANCE VICE MINISTER Pham Van Trong
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40-TC/GTBD
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Thông tư
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Bộ Tài chính
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Phạm Văn Trọng
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25/04/1994
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01/01/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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TRIPS AGREEMENT (1994)
AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES
PART II. STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS
1. Copyright and Related Rights
2. Trademarks
3. Geographical Indications
4. Industrial Designs
5. Patents
6. Layout-Designs (Topographies) of Integrated Circuits
7. Protection of Undisclosed Information
8. Control of Anti-Competitive Practices in Contractual Licences
PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
1. General Obligations
2. Civil and Administrative Procedures and Remedies
3. Provisional Measures
4. Special Requirements Related to Border Measures
5. Criminal Procedures
PART IV. ACQUISITION AND MAINTENANCE OF INTELLEC TUAL PROPERTY RIGHTS AND RELATED INTER PARTES PROCEDURES
PART V. DISPUTE PREVENTION AND SETTLEMENT
PART VI. TRANSITIONAL ARRANGEMENTS
PART VII. INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS
ANNEX 1C. AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
Members,
Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
Recognizing, to this end, the need for new rules and disciplines concerning:
(a) the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;
(b) the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;
(c) the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;
(d) the provision of effective and expeditious procedures for the multi lateral prevention and settlement of disputes between governments: and
(e) transitional arrangements aiming at the fullest participation in the results of the negotiations;
Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;
Recognizing that intellectual property rights are private rights;
Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;
Recognizing also the special needs of the least- developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;
Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;
Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as "WIPO") as well as other relevant international organizations;
Hereby agree as follows:
PART I
GENERAL PROVISIONS AND BASIC PRINCIPLES
Article 1
Nature and Scope of Obligations
1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.
2. For the purposes of this Agreement, the term "intellectual property" refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II.
3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members. In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those Conventions. 6 Any Member availing itself of the possibilities provided in Article 5(3) or Article 6(2) of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade- Related Aspects of Intellectual Property Rights (the "Council for TRIPS").
Article 2
Intellectual Property Conventions
1. In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).
2. Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.
Article 3
National Treatment
1. Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or Article 16.1)(b) of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.
2. Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.
Article 4
Most-Favoured-Nation Treatment
With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:
(a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;
(b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;
(c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;
(d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.
Article 5
Multilateral Agreements on Acquisition or Maintenance of Protection
The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 6
Exhaustion
For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.
Article 7
Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 8
Principles
1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
PART II
STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS
Section 1: COPYRIGHT AND RELATED RIGHTS
Article 9
Relation to the Berne Convention
1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Article 10
Computer Programs and Compilations of Data
1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
Article 11
Rental Rights
In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.
Article 12
Term of Protection
Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.
Article 13
Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
Article 14
Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations
1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
3. Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).
4. The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member's law. If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.
5. The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place. The term of protection granted pursuant to paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast took place.
6. Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.
Section 2: TRADEMARKS
Article 15
Protectable Subject Matter
1. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertak ings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinc tiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.
2. Paragraph 1 shall not be understood to prevent a Member from denying registration of a trademark on other grounds, provided that they do not derogate from the provisions of the Paris Convention (1967).
3. Members may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. An application shall not be refused solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application.
4. The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.
5. Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, Members may afford an opportunity for the registration of a trademark to be opposed.
Article 16
Rights Conferred
1. The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing pri or rights, nor shall they affect the possibility of Members making rights available on the basis of use.
2. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services. In determining whether a trademark is well known, Members shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark.
3. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.
Article 17
Exceptions
Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
Article 18
Term of Protection
Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years. The registration of a trademark shall be renewable indefinitely.
Article 19
Requirement of Use
1. If use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least three years of non-use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner. Circumstances arising independently of the will of the owner of the trademark which constitute an obstacle to the use of the trademark, such as import restrictions on or other government requirements for goods or services protected by the trademark, shall be recognized as valid reasons for non-use.
2. When subject to the control of its owner, use of a trademark by another person shall be recognized as use of the trademark for the purpose of maintaining the registration.
Article 20
Other Requirements
The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings. This will not preclude a requirement prescribing the use of the trademark identifying the undertaking producing the goods or services along with, but without linking it to, the trademark distinguishing the specific goods or services in question of that undertaking.
Article 21
Licensing and Assignment
Members may determine conditions on the licensing and assignment of trademarks, it being understood that the compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign the trademark with or without the transfer of the business to which the trademark belongs.
Section 3: GEOGRAPHICAL INDICATIONS
Article 22
Protection of Geographical Indications
1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:
(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.
4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.
Article 23
Additional Protection for Geographical Indications for Wines and Spirits
1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indi cation in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.
2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.
3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provi sions of Article 22(4). Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.
Article 24
International Negotiations: Exceptions
1. Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through 8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.
2. The Council for TRIPS shall keep under review the application of the provisions of this Section: the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compli ance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.
3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.
4. Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.
5. Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
(a) before the date of application of these provisions in that Member as defined in Part VI: or
(b) before the geographical indication is protected in its country of origin;
measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.
6. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.
7. A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.
8. The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.
9. There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.
Section 4: Industrial Designs
Article 25
Requirements for Protection
1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combi nations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.
2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.
Article 26
Protection
1. The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
2. Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
3. The duration of protection available shall amount to at least 10 years.
Section 5: PATENTS
Article 27
Patentable Subject Matter
1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to Article 65(4), Article 70(8) and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro- organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
Article 28
Rights Conferred
1. A patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing for these purposes that product;
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
Article 29
Conditions on Patent Applicants
1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.
2. Members may require an applicant for a patent to provide information concerning the applicant's corresponding foreign applications and grants.
Article 30
Exceptions to Rights Conferred
Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 31
Other Use Without Authorization of the Right Holder
Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:
(a) authorization of such use shall be considered on its individual merits;
(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practi cable. In the case of public non-commer cial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;
(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi- conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competi tive;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;
(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;
(g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;
(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;
(i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;
(j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;
(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti- competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;
(l) where such use is authorized to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent"), the following additional condi tions shall apply:
(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;
(ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and
(iii) the use authorized in respect of the first patent shall be non- assignable except with the assignment of the second patent.
Article 32
Revocation/Forfeiture
An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.
Article 33
Term of Protection
The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in Article 28(1)(b), if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph 1(a) is fulfilled or only if the condition referred to in subparagraph 1(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.
Section 6: LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS
Article 35
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as "layout-designs") in accordance with Articles 2 through 7 (other than Article 6(3)), Article 12 and Article 16(3) of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.
Article 36
Scope of the Protection
Subject to the provisions of Article 37(1), Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout- design.
Article 37
Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incor porating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout- design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout- design.
2. The conditions set out in Article 31(a) through 31(k) shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expir ation of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.
Section 7: PROTECTION OF UNDISCLOSED INFORMATION
Article 39
1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.
2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:
(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) has commercial value because it is secret; and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.
Section 8: CONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES
Article 40
1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.
2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.
3. Each Member shall enter, upon request, into consultations with any other Member which has cause to believe that an intellectual property right owner that is a national or domiciliary of the Member to which the request for consultations has been addressed is undertaking practices in violation of the requesting Member's laws and regulations on the subject matter of this Section, and which wishes to secure compliance with such legislation, without prejudice to any action under the law and to the full freedom of an ultimate decision of either Member. The Member addressed shall accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matter in question and of other information available to the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member.
4. A Member whose nationals or domiciliaries are subject to proceedings in another Member concerning alleged violation of that other Member's laws and regulations on the subject matter of this Section shall, upon request, be granted an opportunity for consultations by the other Member under the same conditions as those foreseen in paragraph 3.
PART III
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Section 1: GENERAL OBLIGATIONS
Article 41
1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
3. Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceeding without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.
4. Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases.
5. It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.
Section 2: CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES
Article 42
Fair and Equitable Procedures
Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appear ances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.
Article 43
Evidence
1. The judicial authorities shall have the authority, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.
2. In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Member may accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information pres ented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.
Article 44
Injunctions
1. The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.
2. Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with Article 31(h). In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member's law, declaratory judgments and adequate compensation shall be available.
Article 45
Damages
1. The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.
2. The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appro priate attorney's fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre- established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.
Article 46
Other Remedies
In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.
Article 47
Right of Information
Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.
Article 48
Indemnification of the Defendant
1. The judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney's fees.
2. In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith in the course of the administration of that law.
Article 49
Administrative Procedures
To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in this Section.
Section 3: PROVISIONAL MEASURES
Article 50
1. The judicial authorities shall have the authority to order prompt and effective provisional measures:
(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;
(b) to preserve relevant evidence in regard to the alleged infringement.
2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.
3. The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
4. Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.
5. The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.
6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member's law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
8. To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.
Section 4: SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
Article 51
Suspension of Release by Customs Authorities
Members shall, in conformity with the provisions set out below, adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judi cial, for the suspension by the customs authorities of the release into free circulation of such goods. Members may enable such an application to be made in respect of goods which involve other infringements of intellectual prop erty rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories.
Article 52
Application
Any right holder initiating the procedures under Article 51 shall be required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of importation, there is prima facie an infringement of the right holder's intellectual property right and to supply a sufficiently detailed description of the goods to make them readily recognizable by the customs authorities. The com petent authorities shall inform the applicant within a reasonable period whether they have accepted the application and, where determined by the competent authorities, the period for which the customs authorities will take action.
Article 53
Security or Equivalent Assurance
1. The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.
2. Where pursuant to an application under this Section the release of goods involving industrial designs, patents, layout-designs or undisclosed information into free circulation has been suspended by customs authorities on the basis of a decision other than by a judicial or other independent authority, and the period provided for in Article 55 has expired without the granting of provisional relief by the duly empowered authority, and provided that all other conditions for importation have been complied with, the owner, importer, or consignee of such goods shall be entitled to their release on the posting of a security in an amount sufficient to protect the right holder for any infringement. Payment of such security shall not prejudice any other remedy available to the right holder, it being understood that the security shall be released if the right holder fails to pursue the right of action within a reasonable period of time.
Article 54
Notice of Suspension
The importer and the applicant shall be promptly notified of the suspension of the release of goods according to Article 51.
Article 55
Duration of Suspension
If, within a period not exceeding 10 working days after the applicant has been served notice of the suspension, the customs authorities have not been informed that proceedings leading to a decision on the merits of the case have been initiated by a party other than the defendant, or that the duly empowered authority has taken provi sional measures prolonging the suspension of the release of the goods, the goods shall be released, provided that all other conditions for importation or exportation have been complied with: in appropriate cases, this time-limit may be extended by another 10 working days. If pro ceedings leading to a decision on the merits of the case have been initiated, a review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period, whether these measures shall be modified, revoked or confirmed. Notwithstanding the above, where the suspension of the release of goods is carried out or continued in accordance with a provisional judicial measure, the provisions of Article 50(6) shall apply.
Article 56
Indemnification of the Importer and of the Owner of the Goods
Relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to Article 55.
Article 57
Right of Inspection and Information
Without prejudice to the protection of confidential information, Members shall provide the competent authorities the authority to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate the right holder's claims. The competent authorities shall also have authority to give the importer an equiv alent opportunity to have any such goods inspected. Where a positive determination has been made on the merits of a case, Members may provide the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question.
Article 58
Ex Officio Action
Where Members require competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:
(a) the competent authorities may at any time seek from the right holder any information that may assist them to exer cise these powers;
(b) the importer and the right holder shall be promptly notified of the suspension. Where the importer has lodged an appeal against the suspension with the competent authorities, the suspension shall be subject to the conditions, mutatis mutandis, set out at Article 55;
(c) Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.
Article 59
Remedies
Without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46. In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances.
Article 60
De Minimis Imports
Members may exclude from the application of the above provisions small quantities of goods of a non-commercial nature contained in travellers' personal luggage or sent in small consignments.
Section 5: CRIMINAL PROCEDURES
Article 61
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.
PART IV
ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER PARTES PROCEDURES
Article 62
1. Members may require, as a condition of the acquisition or maintenance of the intellectual property rights provided for under Sections 2 through 6 of Part II, compliance with reasonable procedures and formalities. Such procedures and formalities shall be consistent with the provisions of this Agreement.
2. Where the acquisition of an intellectual property right is subject to the right being granted or registered, Members shall ensure that the procedures for grant or registration, subject to compliance with the substantive conditions for acquisition of the right, permit the granting or registration of the right within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.
3. Article 4 of the Paris Convention (1967) shall apply mutatis mutandis to service marks.
4. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member's law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in Article 41(2) and 41(3).
5. Final administrative decisions in any of the procedures referred to under paragraph 4 shall be subject to review by a judicial or quasi- judicial authority. However, there shall be no obligation to provide an opportunity for such review of decisions in cases of unsuccessful opposition or administrative revocation, provided that the grounds for such procedures can be the subject of invalidation procedures.
PART V
DISPUTE PREVENTION AND SETTLEMENT
Article 63
Transparency
1. Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member per taining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.
2. Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).
3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.
4. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.
Article 64
Dispute Settlement
1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.
2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement.
3. During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.
PART VI
TRANSITIONAL ARRANGEMENTS
Article 65
Transitional Arrangements
1. Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.
2. A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.
3. Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.
4. To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.
5. A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.
Article 66
Least-Developed Country Members
1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under Article 65(1). The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least- developed country Members in order to enable them to create a sound and viable technological base.
Article 67
Technical Cooperation
In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least- developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.
PART VII
INSTITUTIONAL ARRANGEMENTS: FINAL PROVISIONS
Article 68
Council for Trade-Related Aspects of Intellectual Property Rights
The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members' compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.
Article 69
International Cooperation
Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.
Article 70
Protection of Existing Subject Matter
1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.
2. Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. In respect of this paragraph and paragraphs 3 and 4, copyright obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention (1971), and obligations with respect to the rights of producers of phonograms and performers in existing phonograms shall be determined solely under Article 18 of the Berne Convention (1971) as made applicable under Article 14(6) of this Agreement.
3. There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.
4. In respect of any acts in respect of specific objects embodying protected subject matter which become infringing under the terms of legislation in conformity with this Agreement, and which were commenced, or in respect of which a significant investment was made, before the date of acceptance of the WTO Agreement by that Member, any Member may provide for a limitation of the remedies available to the right holder as to the continued performance of such acts after the date of application of this Agreement for that Member. In such cases the Member shall, how ever, at least provide for the payment of equitable remuneration.
5. A Member is not obliged to apply the provisions of Article 11 and of Article 14(4) with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.
6. Members shall not be required to apply Article 31, or the requirement in Article 27(1) that patent rights shall be enjoyable without discrimination as to the field of technology, to use without the authorization of the right holder where authorization for such use was granted by the government before the date this Agreement became known.
7. In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.
8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:
(a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;
(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and
(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).
9. Where a product is the subject of a patent application in a Member in accordance with paragraph 8(a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI, for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.
Article 71
Review and Amendment
1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in Article 65(2). The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.
2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with Article X(6) of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.
Article 72
Reservations
Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.
Article 73
Security Exceptions
Nothing in this Agreement shall be construed:
(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
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Nonumber
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Điều ước quốc tế
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Chính phủ các nước
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15/04/1994
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30/04/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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UK/VIETNAM DOUBLE TAXATION AGREEMENT
SIGNED 9 APRIL 1994
Entered into force 15 December 1994
Effective in United Kingdom from 1 April 1995 for corporation tax and from 6 April 1995 for income tax and capital gains tax
Effective in the Vietnam for withholding taxes paid on or after 1 January 1995, arising on or after 1 January 1994
Double Taxation Agreements are reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO.
CONTENTS
Article 1 ( Personal scope)
Article 2 ( Taxes covered)
Article 3 ( General definitions)
Article 4 ( Resident)
Article 5 ( Permanent establishment)
Article 6 ( Income from immovable property)
Article 7 ( Business profits)
Article 8 ( Shipping and air transport)
Article 9 ( Associated enterprises)
Article 10 ( Dividends)
Article 11 ( Interest)
Article 12 ( Royalties)
Article 13 ( Capital gains)
Article 14 ( Independent personal services)
Article 15 ( Dependent personal services)
Article 16 ( Directors' fees)
Article 17 ( Artistes and sportsmen)
Article 18 ( Pensions)
Article 19 ( Government service)
Article 20 ( Students)
Article 21 ( Other income)
Article 22 ( Elimination of double taxation)
Article 23 ( Non discrimination)
Article 24 ( Mutual agreement procedure)
Article 25 ( Exchange of information)
Article 26 ( Members of diplomatic or permanent missions and consular posts)
Article 27 ( Entry into force)
Article 28 ( Termination)
EXCHANGE OF NOTES
AGREEMENT
BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND CAPITAL GAINS
The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Socialist Republic of Vietnam;
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains;
Have agreed as follows:
Article 1
Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2
Taxes covered
(1) This Agreement shall apply to taxes on income and on capital gains imposed on behalf of a Contracting State irrespective of the manner in which they are levied.
(2) There shall be regarded as taxes on income and on capital gains all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amount of wages or salaries paid by enterprises as well as taxes on capital appreciation.
(3) The existing taxes to which the Agreement shall apply are:
(a) in the United Kingdom:
(i) the income tax;
(ii) the corporation tax; and
(iii) the capital gains tax;
(hereinafter referred to as "United Kingdom tax");
(b) in Vietnam;
(i) the income tax;
(ii) the profits tax;
(iii) the profit remittance tax;
(iv) the foreign petroleum sub contractor tax;
(v) the foreign contractor tax;
(hereinafter referred to as "Vietnamese tax").
(4) The Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in their respective taxation laws.
Article 3
General definitions
(1) For the purposes of this Agreement, unless the context otherwise requires:
(a) the term "United Kingdom" means Great Britain and Northern Ireland, including any area outside the territorial sea of the United Kingdom which in accordance with international law has been or may hereafter be designated as an area within which the rights of the United Kingdom with respect to the sea bed and sub soil and their natural resources may be exercised;
(b) the term "Vietnam" means the Socialist Republic of Vietnam; when used in a geographical sense, it means all its national territory, including its territorial sea and any area beyond its territorial sea, within which Vietnam, in accordance with international law, has sovereign rights of exploration for and exploitation of natural resources of the sea bed and its sub soil and superjacent water mass;
(c) the terms "a Contracting State" and "the other Contracting State" mean the United Kingdom or Vietnam, as the context requires;
(d) the term "person" includes an individual, a company and any body of persons, but does not include a partnership;
(e) the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" means respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(g) the term "national" means:
(i) in relation to the United Kingdom, any British citizen, or any British subject not possessing the citizenship of any other Commonwealth country or territory, provided he has the right of abode in the United Kingdom; and any legal person, partnership, association or other entity deriving its status as such from the laws in force in the United Kingdom;
(ii) in relation to Vietnam any individual possessing the nationality of Vietnam and any legal person, partnership and association deriving their status as such from the laws in force in Vietnam.
(h) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
(i) the term "competent authority" means:
(i) in the case of the United Kingdom, the Commissioners of Inland Revenue or their authorised representative; and
(ii) in the case of Vietnam, the Minister of Finance or his authorised representative.
(2) As regards the application of the Agreement by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that Contracting State concerning the taxes to which the Agreement applies.
Article 4
Resident
(1) For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. But this term does not include any person who is liable to tax in that Contracting State only if he derives income or capital gains from sources therein.
(2) Where by reason of the provisions of paragraph (1) of this Article an individual is a resident of both Contracting States, then his status shall be determined as follows:
(a) he shall be deemed to be a resident of the Contracting State in which he has a permanent home available to him. If he has a permanent home available to him in both Contracting States, he shall be deemed to be a resident of the Contracting State with which his personal and economic relations are closer (centre of vital interests);
(b) if the Contracting State in which he has his centre of vital interests cannot be determined, or if he has no permanent home available to him in either Contracting State, he shall be deemed to be a resident of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States or in neither of them, he shall be deemed to be a resident of the Contracting State of which he is a national;
(d) if he is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
(3) Where by reason of the provisions of paragraph (1) of this Article a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.
Article 5
Permanent establishment
(1) For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2) The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
(3) A building site or construction or installation project constitutes a permanent establishment only if it lasts more than 183 days.
(4) Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
(f) the maintenance of a fixed place of business solely for any combination of activities mentioned in sub paragraphs (a) to (e) of this paragraph, provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
(5) Notwithstanding the provisions of paragraphs (1) and (2) of this Article, where a person other than an agent of an independent status to whom paragraph (6) of this Article applies is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that Contracting State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph (4) of this Article which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
(6) An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
(7) The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6
Income from immovable property
(1) Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
(2) The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property.
(3) The provisions of paragraph (1) of this Article shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
(4) The provisions of paragraphs (1) and (3) of this Article shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7
Business profits
(1) The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2) Subject to the provisions of paragraph (3) of this Article, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
(3) In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including a reasonable allocation of executive and general administrative expenses incurred for the purposes of the enterprise as a whole, whether in the Contracting State in which the permanent establishment is situated or elsewhere.
(4) No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5) Where profits include items of income or capital gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8
Shipping and air transport
(1) Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.
(2) For the purposes of this Article, profits from the operation of ships or aircraft in international traffic include:
(a) income from the rental on a bareboat basis of ships or aircraft; and
(b) profits from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used for the transport of goods or merchandise;
where such rental or such use, maintenance or rental, as the case may be, is incidental to the operation of ships or aircraft in international traffic.
(3) Where profits within paragraphs (1) or (2) of this Article are derived by an enterprise of a Contracting State from participation in a pool, a joint business or an international operating agency, the profits attributable to that enterprise shall be taxable only in the Contracting State of which it is a resident.
Article 9
Associated enterprises
(1) Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State;
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, may be included by a Contracting State in the profits of that enterprise and taxed accordingly.
(2) Where a Contracting State includes in the profits of an enterprise of that State and taxes accordingly-profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall if necessary consult each other.
Article 10
Dividends
(1) Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
(2) However such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends and subject to tax in respect of the dividends in that other Contracting State the tax so charged shall not exceed:
(a) 7 per cent of the gross amount of the dividends if the beneficial owner is a company which controls, directly or indirectly, at least 50 per cent of the voting power in the company paying the dividends or has invested at least £7 million in the share capital of the company paying the dividends;
(b) 10 per cent of the gross amount of the dividends if the beneficial owner is a company which controls, directly or indirectly, at least 25 per cent but less than 50 per cent of the voting power in the company paying the dividends;
(c) 15 per cent of the gross amount of the dividends in all other cases.
(3) The term "dividends" as used in this Article means income from shares, or other rights, not being debt claims, participating in profits, as well as income from other corporate rights assimilated to income from shares by the taxation laws of the State of which the company making the distribution is a resident and also includes any other item (other than interest relieved from tax under Article 11 of this Agreement) which, under the laws of the Contracting State of which the company paying the dividend is a resident, is treated as a dividend or distribution of a company.
(4) The provisions of paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14 of this Agreement, as the case may be, shall apply.
(5) Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profit consist wholly or partly of profits or income arising in that other State.
Article 11
Interest
(1) Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
(2) However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest and subject to tax in respect of the interest in that other Contracting State the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3) The term "interest" as used in this Article means income from debt claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures. The term "interest" shall not include any item which is treated as a distribution under Article 10 of this Agreement.
(4) The provisions of paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such cases the provisions of Article 7 or Article 14 of this Agreement, as the case may be, shall apply.
(5) Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6) Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest paid exceeds, for whatever reason, the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last mentioned amount of interest. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
(7) The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.
(8) Notwithstanding the provisions of paragraph (2) of this Article, interest arising in a Contracting State shall be exempt from tax in that State if it is derived and beneficially owned by the Government of the other Contracting State or a local authority thereof or any agency or instrumentality of that Government or local authority.
(9) Notwithstanding the provisions of Article 7 of this Agreement and of paragraph (2) of this Article, interest arising in Vietnam which is paid to and beneficially owned by a resident of the United Kingdom shall be exempt from tax in Vietnam if it is paid in respect of a loan made, guaranteed or insured, or any other debt claim or credit guaranteed or insured by the United Kingdom Export Credits Guarantee Department.
Article 12
Royalties
(1) Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
(2) However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that Contracting State, but if the beneficial owner of the royalties is a resident of the other Contracting State and subject to tax in respect of the royalties in that State, the tax so charged, subject to the understanding recorded in the Exchange of Notes between the Contracting States when this Agreement was signed, shall not exceed 10 per cent of the gross amount of the royalties.
(3) The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for information (know how) concerning industrial, commercial or scientific experience.
(4) The provisions of paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14 of this Agreement, as the case may be, shall apply.
(5) Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, or a local authority thereof, or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liablility to pay the royalties was incurred and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6) Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right, or information for which they are paid, exceeds, for whatever reason, the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last mentioned amount of royalties. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
(7) The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation of assignment of the rights in respect of which the royalties are paid to take advantage of this Article by means of that creation or assignment.
Article 13
Capital gains
(1) Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 of this Agreement and situated in the other Contracting State may be taxed in that other State.
(2) Gains derived by a resident of a Contracting State from the alienation of:
(a) shares deriving their value or the greater part of their value directly or indirectly from immovable property situated in the other Contracting State, or
(b) an interest in a partnership or trust the assets of which consist principally of immovable property situated in the other Contracting State, or of shares referred to in sub paragraph (a) above, may be taxed in that other State.
(3) Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
(4) Gains derived by a resident of a Contracting State from the alienation of ships or aircraft operated in international traffic by an enterprise of a Contracting State or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that Contracting State.
(5) Gains from the alienation of any property other than that referred to in paragraphs (1), (2), (3) and (4) of this Article shall be taxable only in the Contracting State of which the alienator is a resident provided that those gains are subject to tax in that Contracting State.
(6) The provisions of paragraph (5) of this Article shall not affect the right of a Contracting State to levy according to its law a tax on capital gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and has been a resident of the first mentioned Contracting State at any time during the five years immediately preceding the alienation of the property.
Article 14
Independent personal services
(1) Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.
(2) The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 15
Dependent personal services
(1) Subject to the provisions of Articles 16, 18, 19 and 20 of this Agreement, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
(2) Notwithstanding the provisions of paragraph (1) of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days within any period of twelve months; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
(3) Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State of which the enterprise operating the ship or aircraft is a resident.
Article 16
Directors' fees
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17
Artistes and sportsmen
(1) Notwithstanding the provisions of Articles 14 and 15 of this Agreement, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsman, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
(2) Where income in respect of personal activities exercised by an entertainer or a sportsman in his capacity as such accrues not to the entertainer or sportsman himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15 of this Agreement, be taxed in the Contracting State in which the activities of the entertainer or sportsman are exercised.
Article 18
Pensions
(1) Subject to the provisions of paragraph (2) of Article 19 of this Agreement, pensions and other similar remuneration paid in consideration of past employment to an individual resident of a Contracting State and any annuity paid to such an individual resident shall be taxable only in that State.
(2) The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
Article 19
Government service
(1) (a) Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) Notwithstanding the provisions of sub paragraph (a) of this paragraph, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
(2) (a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) Notwithstanding the provisions of sub paragraph (a) of this paragraph, such pension shall be taxable only in the other Contracting State if the individual is a resident of and a national of that State.
(3) The provisions of Articles 15, 16 and 18 of this Agreement shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
Article 20
Students
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that first mentioned State, provided that such payments arise from sources outside that State.
Article 21
Other income
(1) Items of income beneficially owned by a resident of a Contracting State, wherever arising, which are not dealt with in the foregoing Articles of this Agreement, other than income paid out of trusts or the estates of deceased persons in the course of administration, shall be taxable only in that State.
(2) The provisions of paragraph (1) of this Article shall not apply to the income, other than income from immovable property as defined in paragraph (2) of Article 6 of this Agreement, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
Article 22
Elimination of double taxation
(1) Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (which shall not affect the general principle hereof):
(a) Vietnamese tax payable under the laws of Vietnam and in accordance with this Agreement, whether directly or by deduction, on profits, income or chargeable gains from sources within Vietnam (excluding in the case of a dividend, tax payable in Vietnam in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same profits, income or chargeable gains by reference to which the Vietnamese tax is computed;
(b) in the case of a dividend paid by a company which is a resident of Vietnam to a company which is a resident of the United Kingdom and which controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividend, the credit shall take into account (in addition to any Vietnamese tax for which credit may be allowed under the provisions of sub paragraph (a) of this paragraph) the Vietnamese tax payable by the company in respect of the profits out of which such dividend is paid.
(2) Subject to the provisions of the law of Vietnam from time to time in force which relate to the allowance of a credit against Vietnamese tax of tax paid in a country outside Vietnam (which shall not affect the general principle of this Article), tax paid under the law of the United Kingdom and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Vietnam from sources in the United Kingdom shall be allowed as a credit against Vietnamese tax payable in respect of that income. The credit shall not, however, exceed the Vietnamese tax as computed by reference to the same income before the credit is given.
(3) For the purposes of paragraphs (1) and (2) of this Article, profits, income and capital gains owned by a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Agreement shall be deemed to arise from sources in that other Contracting State.
(4) Subject to paragraphs (5) and (6) of this Article, for the purpose of paragraph (1) of this Article, the term "Vietnamese tax payable" shall be deemed to include any amount which would have been payable as Vietnamese tax for any year but for an exemption or reduction of tax granted for that year or any part thereof under any of the following provisions of Vietnamese law:
(a) Articles 26, 27, 28, 32 or 33 of the Law on Foreign Investment in Vietnam 1987 and connected regulations as amended, so far as they were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character: and provided always that the competent authority of Vietnam has certified that any such exemption from or reduction of Vietnamese tax given under these Articles has been granted in order to promote industrial, commercial, scientific, educational or other development in Vietnam and the competent authority of the United Kingdom has accepted that such exemption or reduction has been granted for such purpose; or
(b) any other provision to promote economic development in Vietnam, which may subsequently be introduced, granting exemption from or reduction of Vietnamese tax which is agreed by the competent authorities of the Contracting States to be of a substantially similar character, if it has not been modified thereafter or has been modified only in minor respects so as not to affect its general character: and subject always to certification and acceptance having taken place as provided for in sub paragraph (a) of this paragraph.
(5) Relief from United Kingdom tax by virtue of paragraph (4) of this Article shall be given for a period of ten years only, beginning with the date on which this Agreement entered into force.
(6) The period referred to in paragraph (5) of this Article may be extended by agreement between the Contracting States.
Article 23
Non discrimination
(1) Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.
(2) The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities, provided that this paragraph shall not prevent that other Contracting State from imposing on the profits attributable to a permanent establishment in that Contracting State of a company which is a resident of the first mentioned Contracting State further tax not exceeding 10% of those profits. Moreover this paragraph shall not apply to the taxation of permanent establishments in Vietnam of United Kingdom enterprises in respect of oil exploration or production activities or in respect of activities which in the case of Vietnamese enterprises are subject to tax under the Law on Agriculture Land Use Tax.
(3) Except where the provisions of paragraph (1) of Article 9, paragraph (6) of Article 11 or paragraph (6) of Article 12 of this Agreement apply, and subject to the provisions of paragraph (7) of Article 11 or paragraph (7) of Article 12 of this Agreement, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first mentioned State.
(4) Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first mentioned State to any taxation or any requirement connected therewith which is other or more burdensome that the taxation and connected requirements to which other similar enterprises of the first mentioned State are or may be subjected.
(5) Nothing contained in this Article shall be construed as obliging either Contracting State to grant to individuals not resident in that State any of the personal allowances, reliefs and reductions for tax purposes which are granted to individuals so resident.
(6) The provisions of this Article shall apply only to the taxes which are the subject of this Agreement.
Article 24
Mutual agreement procedure
(1) Where a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident.
(2) The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting Stat e, with a view to the avoidance of taxation which is not in accordance with the Agreement.
(3) The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement.
(4) The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
Article 25
Exchange of information
(1) The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by this Agreement insofar as the taxation thereunder is not contrary to this Agreement, in particular, to prevent fraud and to facilitate the administration of statutory provisions against legal avoidance. The exchange of information is not restricted by Article 1 of this Agreement. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
(2) In no case shall the provisions of paragraph (1) of this Article be construed so as to impose on the competent authority of either Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice prevailing in either Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of either Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy.
Article 26
Members of diplomatic or permanent missions and consular posts
Nothing in this Agreement shall affect any fiscal privileges accorded to members of diplomatic or permanent missions or consular posts under the general rules of international law or under the provisions of special agreements.
Article 27
Entry into force
Each of the Contracting States shall notify to the other through the diplomatic channel the completion of the procedures required by its law for the bringing into force of this Agreement. This Agreement shall enter into force on the date of the later of these notifications and shall thereupon have effect:
(a) in the United Kingdom:
(i) in respect of income tax and capital gains tax, for any year of assessment beginning on or after 6th April in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of corporation tax, for any financial year beginning on or after 1st April in the calendar year next following that in which the Agreement enters into force;
(b) in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1st January following the calendar year in which the Agreement enters into force;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year in which the Agreement enters into force.
Article 28
Termination
This Agreement shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Agreement, through the diplomatic channel, by giving notice of termination at least six months before the end of any calendar year beginning after the expiry of five years from the date of entry into force of the Agreement. In such event, the Agreement shall cease to have effect:
(a) in the United Kingdom:
(i) in respect of income tax and capital gains tax, for any year of assessment beginning on or after 6th April in the calendar year next following that in which the notice is given;
(ii) in respect of corporation tax, for any financial year beginning on or after 1st April in the calendar year next following that in which the notice is given;
(b) in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1st January following the calendar year in which the notice is given;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year in which the notice given.
In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
Done in duplicate at Hanoi this 9th day of April 1994 in the English and Vietnamese languages, both texts being equally authoritative.
For the Government of the United Kingdom Great Britain and Northern Ireland:
For the Government of the of Socialist Republic of Vietnam:
Alastair Goodlad Minister of State for Foreign and Commonwealth Affairs
Ho Te Minister of Finance
EXCHANGE OF NOTES
Mr Alastair Goodlad
Minister of State for Foreign and Commonwealth Affairs
Foreign and Commonwealth Office
LONDON
9th April 1994
Excellency,
I have the honour to refer to the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains which has been signed today and to propose on behalf of the Government of the Socialist Republic of Vietnam:
in relation to Article 12
If, before or after the entry into force of this Agreement, Vietnam concludes an Agreement for the Avoidance of double taxation with any other member State of the Organisation for Economic Cooperation and Development and, under the provisions of that Agreement Vietnam may tax royalties arising in Vietnam and paid to a resident of that State but the tax charged is not to exceed a lower percentage of the gross royalties than that specified in paragraph (2) of Article 12, then:
where that lower percentage applies, subject to the same exceptions as are provided in Article 12, to income of the same description as that to which paragraph (2) of Article 12 applies, the lower percentage shall be substituted for that specified in paragraph (2) of Article 12 with effect from the date of entry into force of that Agreement or of this Agreement, whichever is the later;
in relation to Article 22
If, before or after the entry into force of this Agreement, Vietnam introduces a withholding tax on dividends or interest that the United Kingdom competent authority will undertake that a provision to promote economic development in Vietnam which grants an exemption from or reduction of that Vietnamese tax will fall to be considered as of a substantially similar character within the meaning of paragraph (4)(b) of Article 22;
in relation to Article 23
For so long as Vietnam continues to grant to investors licences under the Law on Foreign Investment in Vietnam, which specify the taxation to which the investor shall be subject, the imposition of such taxation shall not be regarded as breaching the terms of paragraph (2) of Article 23.
If the foregoing proposals are acceptable to the Government of the United Kingdom of Great Britain and Northern Ireland I have the honour to suggest that the present Note and Your Excellency's reply to that effect should be regarded as constituting an agreement between the two Governments in this matter.
I take this opportunity to renew to your Excellency the assurances of my highest consideration.
For the Government of the Socialist Republic of Vietnam
Ho Te Minister of Finance
His Excellency Mr Ho Te Minister of Finance 8 Phan Huy Chu Hanoi
9th April 1994
Excellency,
In am in receipt of your Note dated 9th April which states as follows:
“I have the honour to refer to the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains which has been signed today and to propose on behalf of the Government of the Socialist Republic of Vietnam:
in relation to Article 12
If, before or after the entry into force of this Agreement, Vietnam concludes an Agreement for the avoidance of double taxation with any other member State of the Organisation for Economic Cooperation and Development and, under the provisions of that Agreement Vietnam may tax royalties arising in Vietnam and paid to a resident of that State but the tax charged is not to exceed a lower percentage of the gross royalties than that specified in paragraph (2) of Article 12, then:
where that lower percentage applies, subject to the same exceptions as are provided in Article 12, to income of the same description as that to which paragraph (2) of Article 12 applies, the lower percentage shall be substituted for that specified in paragraph (2) of Article 12 with effect from the date of entry into force of that Agreement or of this Agreement, whichever is the later;
in relation to Article 22
If, before or after the entry into force of this Agreement, Vietnam introduces a withholding tax on dividends or interest that the United Kingdom competent authority will undertake that a provision to promote economic development in Vietnam which grants an exemption from or reduction of that Vietnamese tax will fall to be considered as of a substantially similar character within the meaning of paragraph (4)(b) of Article 22;
in relation to Article 23
For so long as Vietnam continues to grant to investors licences under the Law on Foreign Investment in Vietnam, which specify the taxation to which the investor shall be subject, the imposition of such taxation shall not be regarded as breaching the terms of paragraph (2) of Article 23. "
The foregoing proposals being acceptable to the Government of the United Kingdom of Great Britain and Northern Ireland, I have the honour to confirm that Your Excellency's Note and this Reply shall be regarded as constituting an agreement between the two Governments in this matter which shall enter into force at the same time as the entry into force of the Agreement.
I take this opportunity to renew to Your Excellency the assurances of my highest consideration.
For the Government of the United Kingdom of Great Britain and Northern Ireland
Alastair Goodlad Minister of State for Foreign and Commonwealth Affairs
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Vương quốc Anh
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Hồ Tế, Alastair Goodlad
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09/04/1994
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15/12/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
ON TRANSIT OF GOODS BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
The Government of the Socialist Republic of Vietnam and Government of the People’s Republic of China (hereinafter referred to as “the Contracting Parties")
Desiring to further strengthen and expand the economic and trading cooperation relation between the two countries to develop the economy of both countries on the principles of equality and mutual benefit through peace negotiation
Have agreed as follows:
Article 1:
The Government of the Socialist Republic of Vietnam shall permit goods of the People's Republic of China to be exported to a third country and imported from a third country through the territory of the Socialist Republic of Vietnam.
The Government of the People's Republic of China shall permit goods of the Socialist Republic of Vietnam to be exported to a third country and imported from a third country through the territory of the People's Republic of China.
Article 2:
The Contracting Parties shall permit goods to be transited through their territory, except for goods prohibited from import and export by each country.
Article 3:
The transit of goods shall comply with the following regulations:
3.1- Goods shall be transited with permission of the competent authority of the country through which the goods are transmitted (hereinafter referred to as “intermediate country”) upon consideration of the application form for transit of goods submitted by the goods owner of the country applying for transit.
3.2- Goods shall be transited in compliance with the customs law of the intermediate country.
3.3- The quantity of goods delivered through the last exit checkpoint of the intermediate country shall be exactly the same as that delivered through the first entry checkpoint of the intermediate country. Loss or damage of goods due to lost or break shall be confirmed in writing by the customs authority of the place in which the event occurs.
3.4- The routes, border checkpoints and schedule as provided in the transit license shall be complied with while transporting transited goods under supervision of the customs authority of the intermediate country.
3.5- Warehousing of transited goods in the intermediate country is subject to permission of the country’s customs authorities, which will put goods under their supervision.
3.6- It is prohibited to sell the transited goods in the territory of the intermediate country. 3.6- For special cases, the sale of the transited goods in Vietnam is subject to permission of the Ministry of Trade of the Socialist Republic of Vietnam; the sale of the transited goods in China is subject to the Ministry of Foreign Trade and Economic Co-operation of the People’s Republic of China if the goods are consumed in China; taxes and other fees shall be paid under law provisions of the intermediate country.
Article 4:
The Contracting Parties mutually agree to collect transit fees under regulations of relevant Agreements that have been signed previously and International Agreements to which they are signatories, or under current regulations of the intermediate country conformable to international practice if none of the aforesaid Agreements is available.
Article 5:
The Contracting Parties mutually concur that the transit of goods and relevant procedures shall be done in compliance with current regulations of the intermediate country.
Article 6:
Goods shall be transited through the following border checkpoints:
- Huu Nghi – Youyi Guan
- Lao Cai – Hekou
- Dong Dang – Pingxiang
- Mong Cai – Dongxing
In addition, the transited goods may be transported through international border checkpoints which are opened with mutual consent of the Governments of the Contracting Parties.
Article 7:
Payment of fees and expenses incurred on transit of goods specified in this Agreement shall be made in fully convertible currency in conformity with regulations of the Agreement on payment and cooperation between the State Bank of the Socialist Republic of Vietnam and the State Bank of the People's Republic of China signed in Beijing on May 26, 1003 and regulations on management of foreign exchange of each country.
Article 8:
Matters not specified in this Agreement shall be settled based upon regulations of relevant Agreements signed by Vietnam and China.
Article 9:
The Contracting Parties shall authorize the Ministry of Trade of the Socialist Republic of Vietnam and the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China to sign specific documents for implementation of this Agreement according to the reality in each period.
Article 10:
Either one of the Contracting Parties may send a written proposal for addition or amendments to provisions provided herein within the effective period of this Agreement. The other Contracting Party shall give response within 3 months from the day on which such proposal is received. Provisions amended or added by mutual consent of the Contracting Parties shall be deemed to be components of this Agreement and have the same effect as that of this Agreement.
Article 11:
11.1- Disputes arising from interpretation of this Agreement during implementation shall be settled through diplomatic channels by competent representatives of the Contracting Parties.
11.2- Disputes between enterprises arising during execution of contracts shall be settled through negotiation by such enterprises; if the negotiation is not successful, such disputes will be solved by the International Arbitration Center of the intermediate country.
Article 12:
This Agreement comes into effect from the day on which it is signed and is valid for 3 years. If none of the Contracting Parties give the other a written notice of its desire to terminate this Agreement at least 3 months prior to the expiration of this Agreement, the validity of this Agreement shall be automatically renewed for consecutive one-year periods.
In case of termination of this Agreement, its provisions shall still apply to relevant arrangements which have been concluded prior to the termination date until full completion of such arrangements.
This Agreement is signed in Hanoi on April 04, 1994 and is made into two copies, one of which is in Vietnamese and the other is in Chinese and both have equal validity.
Plenipotentiaries of the Government of the Socialist Republic of Vietnam and the Government of the People's Republic of China.
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hòa Nhân dân Trung Hoa, Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam
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***
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09/04/1994
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09/04/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF THE KINGDOM OF SWEDEN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Socialist Republic of Vietnam And the Government of the Kingdom of Sweden,
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
Article 1. PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises as well as taxes on capital appreciation.
3. The existing taxes to which the Agreement shall apply are:
a. in Vietnam:
(i) the personal income tax;
(ii) the profit tax; and
(iii) the profit remittance tax;
(hereinafter referred to as "Vietnamese tax");
b. in Sweden:
(i) the national income tax, including the tax for employees at sea and the with holding tax on dividends;
(ii) the income tax for non-residents;
(iii) the income tax for non-resident artistes and athletes; and
(iv) the municipal income tax;
(hereinafter referred to as "Swedish tax").
4. The Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of the existing taxes. The competent authorities of the Contracting States shall notify each other of important changes which have been made in their respective taxation laws.
Article 3. GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
a. the term "Vietnam" means the Socialist Republic of Vietnam; when used in a geographical sense, it means all its national territory, including its territorial sea and any area beyond its territorial sea, within which Vietnam by Vietnamese legislation and in accordance with international law, has sovereign right of exploration for and exploitation of natural resources of the seabed and its subsoil and superjacent watermass;
b. the term "Sweden" means the Kingdom of Sweden and, when used in a geographical sense, includes the national territory, the territorial sea of Sweden as well as other maritime areas over which Sweden in accordance with international law exercises sovereign rights or jurisdiction;
c. the terms "a Contracting State" and "the other Contracting State" mean Vietnam or Sweden as the context requires;
d. the term "person" includes an individual, a company and any other body of persons;
e. the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
f. the terms “enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
g. the term "national" means:
(i) any individual possessing the nationality of a Contracting State;
(ii) any legal person, partnership and association deriving its status as such from the laws in force in a Contracting State;
h. the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State; and
i. the term "competent authority" means:
(i) in the case of Vietnam, the Minister of Finance or his authorized representative; and
(ii) in the case of Sweden, the Minister of Finance, his authorized representative or the authority which is designated as a competent authority for the purposes of this Agreement.
2. As regards the application of the Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the Agreement applies.
Article 4. RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, nationality, place of management or any other criterion of a similar nature.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
a. he shall be deemed to be a resident of the State in which he has a permanent home available to him. If he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (center of vital interests);
b. if the Contracting State in which he has his centre of vital interests cannot be determined, or if he has no permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
c. if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
d. if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is ituated.
Article 5. PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop; and
f. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
3. A building site, construction, assembly or installation project or supervisory activities in connection therewith constitutes a permanent establishment, only where such site, project or activities continue for a period of more than six months.
4. Notwithstanding paragraphs 1 and 2 the furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by the enterprise for such purpose, always constitutes a permanent establishment where activities of that nature continue (for the same or a connected project) within the country for a period or periods aggregating more than six months within any twelve month period.
5. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a. the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise;
b. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display;
c. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d. the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
e. the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f. the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
6. Notwithstanding the provisions of paragraphs 1 and 2, where a person-other than an agent of an independent status to whom paragraph 8 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person:
a. has and habitually exercises in that State an authority to conclude contracts in the name of the enterprite, unless the activities of such person are limited to those mentioned in paragraph 5 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph; or
b. has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise.
7. Notwithstanding the preceding provisions of this Article, an insurance enterprise of a Contracting State shall, except in regard to re-insurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or insures risks situated therein through a person other than an agent of an independent status to whom paragraph 8 applies.
8. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the orsinary course of their business.
9. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6. INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, buildings, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7. BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or, except in the case of banking enterprise by way of interest on moneys lent to the head office of the enterprise of any of its other offices.
4. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
5. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude such Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. SHIPPING AND AIR TRANSPORT
1. Profits derived by an enterprise of a Contracting State from the operation of aircraft or ships in international traffic shall be taxable only in that Contracting State.
2. With respect to profits derived by the air transport consortium Scandinavian Airlines System (SAS) the provisions of paragraph 1 shall apply only to such part of the profits as corresponds to the participation held in that consortium by AB Aerotransport (ABA), the Swedish partner of Scandinavian Airlines System (SAS).
3. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
Article 9. ASSOCIATED ENTERPRISES
1. Where
a. an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b. the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
Article 10. DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed:
a. 5 per cent of the gross anount of the dividends if the beneficial owner is a company (other than a partnership) which holds directly at least 70 per cent or has invested at least twelve millions US dollar in the capital of the company paying the dividends;
b. 10 per cent of the gross amount of the dividends if the beneficial owner is a company (other than a partnership) which holds less than 70 per cent but at least 25 per cent of the capital of the company paying the dividends;
c. 15 per cent of the gross amount of the dividends in all other cases.
This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. The term "dividends" as used in this Article means income from shares, mining shares, founders' shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights, which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
Article 11. INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and paid to the Government of the other Contracting State shall be exempt from tax in the first-mentioned Contracting State.
For the purposes of this paragraph, the term "Government":
a. in the case of Vietnam, means the Government of the Socialist Republic of Vietnam and shall include:
(i) the State Bank of Vietnam;
(ii) the local authorities; and
(iii) such institutions, the capital of which is wholly owned by the Government of the Socialist Republic of Vietnam or any local authorities as may be agreed from time to time between the competent authorities of the two Contracting States;
b. in the case of Sweden, means the Government of the Kingdom of Sweden and shall include:
(i) the Central Bank;
(ii) a political subdivision or local authority;
(iii) SWEDECORP (Styrelsen for internationellt naringslivsbistand) and Swedfund International AB or any other Swedish institution that may be founded by the Swedish Government to fulfill the same purposes as the said institutions as may be agreed from time to time between the competent authorities of the two Contracting States.
4. The term "interset" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor’s profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State.
2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the recipient is the beneficial owner of the royalties the tax so charged shall not exceed 15 per cent of the gross amount of the royalties. Notwithstanding the preceding sentence, if the royalties are paid with respect to any patent, design or model, secret formula or process, or for information concerning industrial or scientific experience or for the use of or the right to use industrial, commercial or scientific equipment involving a transfer of know how, the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, or a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 13. GAINS FROM THE ALIENATION OF PROPERTY
1. Gains from the alienation of immovable property, as defined in paragraph 2 of Article 6, may be taxed in the Contracting State in which such property is situated. Gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of immovable property situated in the other Contracting State, may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
3. Gains from the alienation of any property other than that referred to in paragraphs 1 and 2, shall be taxable only in the Contracting State of which the alienator is a resident. However, gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company which is a resident of the other Contracting State and which primarily is or has been making passive investments in the form of acquiring shares, bonds or debentures or other securities or is or has been doing other purely financial transactions, may be taxed in that other State.
4. Notwithstanding the provisions of paragraph 3, gains from the alienation of shares or other corporate rights derived by an individual who has been a resident of a Contracting State and who has become a resident of the other Contracting State, may be taxed in the first-mentioned State if the alienation of the shares or other corporate rights occur at any time during the five years next following the date on which the individual has ceased to be a resident of the first-mentioned State.
Article 14. INDEPENDENT PERSONAL SERVICES
1. In come derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State. However, when the activities are performed or exercised in the other Contracting State, the income may also be taxed in that other State:
a. If he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other Contracting State; or
b. If his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days in any twelve month period; in that case, only so much of the income as is derived from his activities performed in that other State may be taxed in that State; or
c. If the remuneration for his activities in the other Contracting State is paid by a resident of that Contracting State or is borne by a permanent establishment or a fixed base situated in that Contracting State and exceeds in that fiscal year 40.000 US dollar.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accoutants.
Article 15. DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a. the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period, and
b. the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
c. the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
Article 16. DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17. ARTISTES AND ATHLETES
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer or athlete himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised.
3. The provisions of paragraphs 1 and 2 shall not apply to remuneration or profits derived from activities exercised in a Contracting State if the visit to that State is directly supported wholly from the public funds of the other Contracting State according to the cultural exchange program between the two Contracting States.
Article 18. PENSIONS, ANNUITIES AND SIMILAR PAYMENTS
1. Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration, disbursements under the Social Security legislation and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in the first-mentioned Contracting State.
2. The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
Article 19. GOVERNMENT SERVICE
1.a. Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2.a. Any pension (except for pension paid under the Social Security legislation) paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b. However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that other State.
3. The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
Article 20. STUDENTS AND APPRENTICES
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the firstmentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Article 21. OTHER INCOME
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2. However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may be taxed in that other State.
3. The provisions of paragraph 1 shall not apply to the income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
Article 22. ELIMINATION OF DOUBLE TAXATION
1. In the case of Vietnam, double taxation shall be avoided as follows:
Where a resident of Vietnam derives income, profits or gains which under the law of Sweden and in accordance with this Agreement may be taxed in Sweden, Vietnam shall allow as a credit against its tax on the income, profits or gains an amount equal to the tax paid in Sweden. The amount of credit, however, shall not exceed the amount of the Vietnamese tax on that income, profits or gains computed in accordance with the taxation laws and regulations of Vietnam.
2. In the case of Sweden, double taxation shall be avoided as follows:
a. Where a resident of Sweden derives income which under the laws of Vietnam and in accordance with the provisions of this Agreement may be taxed in Vietnam, Sweden shall allow - subject to the provisions of the law of Sweden concerning credit for foreign tax (as it may be amended from time to time without changing the general principle hereof) - as a deduction from the tax on such income, an amount equal to the Vietnamese tax paid in respect of such income.
b. Where a resident of Sweden derives income which, in accrordance with the provisions of this Agreement, shall be taxable only in Vietnam, Sweden may, when determining the graduated rate of Swedish tax, take into account the income which shall be taxable only in Vietnam.
c. Notwithstanding the provisions of sub-paragraph a. of this paragraph, dividends paid by a company which is a resident of Vietnam to a company which is a resident of Sweden shall be exempt from Swedish tax according to the provisions of Swedish law governing the exemption of tax on dividends paid to Swedish companies by subsidiaries abroad.
d. For the purposes of sub-paragraph a. of this paragraph the term "Vietnamese tax paid" shall be deemed to include the Vietnamese tax which would have been paid but for any time-limited exemption or reduction of tax granted under incentive provisions contained in Vietnamese laws designed to promote economic development to the extent that such exemption or reduction is granted for profits from industrial and manufacturing activities as well as agriculture (including cattle raising), forestry, fishing, tourism (including restaurants and hotels), mining and quarrying, provided that the activities have been carried out in Vietnam. For the purposes of subparagraph c. of this paragraph a tax of 15 per cent calculated on a Swedish tax base should be considered to have been paid for such activities under those conditions mentioned in the previous sentence.
e. For the purpose of sub-paragraph a. of this paragraph the Vietnamese tax paid in respect of royalties received (which can not according to paragraph 2 of Article 12 exceed 5 per cent of the gross amount of such royalty) as a consideration for the use of any patent, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience shall where it has been used in such an activity as specified in sub-paragraph (d) under the conditions specified in that sub-paragraph, be deemed to always have been paid at a rate of 10 per cent, of the gross amount of the royalties.
f. The provisions of paragraphs d. and e. shall apply only for the first ten years during which this Agreement is effective. This period may be extended by a mutual agreement between the competent authorities.
Article 23. LIMITATION OF BENEFITS
Where any person derives income other than dividends mentioned in Article 10 from a source situated outside Vietnam and such income is exempt from tax under the laws of Vietnam and also exempt from tax in Sweden under this Agreement, Sweden may tax such income under its own laws notwithstading the provisions of this Agreement.
Article 24. NON-DISCRIMINATION
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.
2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, relief and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11 or paragraph 6 of Article 12 of this Agreement apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be duductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected thererwith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected.
5. The provisions of paragraphs 2 and 4 of this Article shall not apply to the Vietnamese profif remittance tax, which in any case shall not exceed 10 per cent of the gross amount of profits remitted, and the Vietnamese taxation in respect of oil exploration or production activities or in respect of agricultural production activities.
6. Nothing contained in this Article shall be construed as obliging either Contracting State to grant to individuals not resident in that State any of the personal allowances, relieves and reductions for tax purposes which are granted to individuals so resident.
7. The provisions of this Article shall apply only to the taxes which are the subject of this Agreement.
Article 25. MUTUAL AGREEMENT PROCEDURE
1. When a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those State, present his case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the dometic law of the Contracting States.
3. The competent authorities of the Contracting State shall jointly endeavour to resolve any difficulties or doubts arising as to the application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. The competent authorities, through consultations, shall develop appropriate bilateral procedures, conditions, methods and techniques for the implementation of the mutual agreement procedure provided for in this Article.
Article 26. EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement, insofar as the taxation thereunder is not contrary to the Agreement, in particular for the prevention of fraud or evasion of such taxes. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State. However, if the information is originally regarded as secret in the transmitting State it shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes which are the subject of the Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decision. The competent authorities shall, through consultation, develop appropriate conditions, methods and techniques concerning the matters in respect of which such exchanges of information shall be made, including, where appropriate, exchanges of information regarding tax avoidance.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
a. to carry out administrative measures at variance with the laws and the administrative practice of that or of the other Contracting State;
b. to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c. to supply information which would disclose any trade, business, industrial commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
Article 27. DIPLOMATIC AGENTS AND CONSULAR OFFICERS
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article 28. ENTRY INTO FORCE
1. Each Contracting State shall notify the other in writing that the procedures required by its legislation for the entry into force of this Agreement have been complied with. The Agreement enters into force with the reception of the last notification.
2. The Agreement shall have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the Agreement enters into force;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year following the calendar year in which the Agreement enters into force, and in subsequent calendar year.
b. in Sweden:
on income derived on or after the first day of January of the year next following that of the entry into force of the Agreement.
Article 29. TERMINATION
This Agreement shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Agreement, through the diplomatic channel, by giving to the other Contracting State, written notice of termination at least six months before the end of any calendar year after the expiration of a period of five years from the date of its entry into force. In such event the Agreement shall cease to have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the notice of temination is given;
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising in the calendar year following the calendar year in which the notice of termination is given, and in subsequent calendar years.
b. in Sweden:
on income derived on or after the first day of January of the year next following that in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Stockholm this 24th day of March of the year one thousand nine hundred and ninety-four in the Vietnamese, English and Swedish languages, all texts being equally authoritative. In case of divergence the English text shall prevail.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
FOR THE GOVERNMENT OF THE KINGDOM OF SWEDEN
PROTOCOL
At the moment of signing the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the Kingdom of Sweden for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, the undersigned have agreed that the following provision shall form an integral part of the Agreement.
I. AD ARTICLE 2
It is agreed that social security fees, including the Swedish General Salary-fee, are not covered by this Agreement even though they may be calculated on the total amounts of wages or salaries paid by enterprises.
II. AD ARTICLE 24
For so long as Vietnam continues to grant to investors licenses under the Law on Foreign Investment in Vietnam, which specify the taxation to which the investor shall be subject, the imposition of such taxation shall not be regarded as breaching the terms of paragraphs 2 and 4 of Article 24.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.
DONE in duplicate at Stockholm this 24th day of March of the year one thousand nine hundred and ninety-four in the Vietnamese, English and Swedish languages, all texts being equally authoritative. In case of divergence the English text shall prevail.
This Agreement entered into force on 8 August 1994
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Thuỵ Điển
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Phạm Ngạc, Dick Kling
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24/03/1994
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08/08/1994
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Đang cập nhật
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Đang cập nhật
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AGREEMENT
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the socialist republic of Vietnam and the Government of the republic of Singapore,
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income,
Have agreed as follows:
Article 1. PERSONEL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the maner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property.
3. The existing taxes to which the Agreement shall apply are:
a. in Singapore:
the income tax;
(hereinafter referred to as "Singapore tax").
b. in Vietnam:
(i) the personal income tax;
(ii) the profit tax;
(iii) the profit remittance tax;
(iv) the foreign petroleum sub-contractor tax; and
(v) the foreign contractor tax;
(hereinafter referred to as "Vietnamese tax").
4. The Agreement shall also apply to any indentical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of the existing taxes. The competent authorities of the Contracting States shall notify each other of significant changes which have been made in their respective taxation laws.
Article 3. GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
a. the term "Singapore" means the Republic of Singapore;
b. the term "Vietnam" means the Socialist Republic of Vietnam;
c. the term "a Contracting State" and "the other Contracting State" mean Vietnam or Singapore as the context requires;
d. the term "person" includes an individual, a company, a body of persons or any other entity which is treated as a person for tax purposes;
e. the term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
f. the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
g. the term "national" means:
(i) any individual possessing the nationality of a Contracting State;
(ii) any legal person, partnership and association deriving its status as such from the laws in force in a Contracting State;
h. the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
i. the term "competent authority" means:
(i) in the case of Vietnam, the Minister of Finance or his authorised representative; and
(ii) in the case of Singapore, the Minister for Finance or his authorised representative;
j. the term "tax" means Vietnamese tax or Singapore tax as the context requires; and
k. the term "fixed base" means a permanent place for the purpose of performing professional services or other activities of an independent nature.
2. As regards the application of the Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning it has under the law of that State concerning the taxes to which the Agreement applies.
Article 4. RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
a. he shall be deemed to be a resident of the State in which he has a permanent home available to him;
b. if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
c. if the State in which he has his centre of vital interests cannot be determined, or of he has no permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
d. if the status of resident cannot be determined according to sub-paragraphs (a) to (c), the competent authorities of the Contracting States shall settle the quesstion by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated. If its place of effective management cannot be determined, the competent authorities of the Contracting States shall settle the question by mutual agreement.
Article 5. PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop;
f. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
3. A building site or construction or installation project constitutes a permanent establishment only if it lasts more than 6 months.
4. Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a. the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
b. the maintenance of a stock of goods or merchandise belonging to the enterprise soledy for the purpose of storage, display or delivery;
c. the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d. the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
e. the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f. the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
5. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 6 applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
Article 6. IMCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. Ships and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to imcome from immovable property used for the performance of independent personal services.
Article 7. BUSINESS PROFITS
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions all expenses, including executive and general administrative expenses, which would be deductible of the permanent establishment were an independent enterprise, insofar as they are reasonably allocable to the permanent establishment, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. SHIPPING AND AIR TRANSPORT
1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.
2. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
3. For the purposes of this Article, profits from the operation of ships or aircraft in international traffic include:
a. income from the lease of ships or aircraft; and
b. profits from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers);
Where such lease or such use, maintenance or rental, as the case may be, is incidental to the operation of ships or aircraft in international traffic.
Article 9. ASSOCIATED ENTERPRISES
Where
a. an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of the other Contracting State, or
b. the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
Article 10. DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed:
a. 5 per cent of the gross amount of the dividends if the beneficial owner has contributed, directly of indirectly, more than 50 per cent of the capital or the company paying the dividends or more than US$10 million;
b. 7 per cent of the gross amount of the dividends if the beneficial owner has contributed, directly or indirectly, between 25 per cent and 50 per cent of the capital of the company paying the dividends;
c. 12, 5 per cent of the gross amount of the dividends in all other cases.
3. Notwithstanding the provisions of paragraphs 1 and 2, dividends paid by a company which is a resident of Vietnam to the Government of Singapore shall be exempt from Vietnamese tax.
4. For the purposes of paragraph 3, the term "Government of Singapore" shall have the same meaning as in paragraph 4 (b) of Article 11.
5. The term "dividends" as used in this Article means income from shares, mining shares, founders' shares, or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
6. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
7. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in that other State.
8. Notwithstanding the provisions of paragraph 2 of this Article, as long as Singapore does not impose a tax on dividends in addition to the tax chargeable on the profits or income of a company, dividends paid by a company which is a resident of Singapore to a resident of Vietnam shall be exempt from any tax in Singapore which may be chargeable on dividends in addition to the tax chargeable on the profits or income of the company.
Article 11. INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and paid to the Government of the other Contracting State shall be exempt from tax in the first - mentioned Contracting State.
4. For the purpose of paragraph 3, the term Government:
a. in the case of Vietnam, means the Government of the Socialist Republic of Vietnam and shall include:
(i) the State Bank of Vietnam;
(ii) the local authorities; and
(iii) a statutory body, or any institution the capital of which is wholly or mainly owned by the Government of the Socialist Republic of Vietnam, as may be agreed from time to time between the competent authorities of the Contracting States;
b. in the case of Singapore means the Government of Singapore, and shall include:
(i) the Monetary Authority of Singapore and the Board of Commissioners of Currency;
(ii) the Government of Singapore Investment Corporation Pte Ltd;
(iii) a statutory body; and
(iv) any institution wholly or mainly owned by the Government of Singapore as may be agreed from time to time between the competent authorities of the Contracting States.
5. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and, in particular, income from Government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
6. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
7. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political sub-division, a local authority, a statutory body or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
8. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that Contracting State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed:
a. 5 per cent of the gross amount of the royalties in respect of payments of any kind received as a consideration for the use of, or the right to use, any patent, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience;
b. 15 per cent of the gross amount of royalties in all other cases.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or for the use of or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority, a statutory body or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 13. CAPITAL GAINS
1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such fixed base, may be taxed in that other State.
3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic, or movable property pertaining to the operating of such ships or aircraft, shall be taxable only in that State.
4. Gains from the alienation of any property other than that referred to in paragraphs 1, 2 and 3 shall be taxable only in the State of which the alienator is a resident.
Article 14. INDEPENDENT PERSONAL SERVICES
1. Income derived by an individual who is a resident of a Contracting State in respect of professional services of other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other Contracting State but only so much of it as is attributable to that fixed base.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 15. DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a. the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the calendar year concerned, and
b. the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
c. the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State shall be taxable only in that State.
Article 16. DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17. ARTISTES AND ATHLETES
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, of a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer or athlete himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised.
3. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, income derived in respect of the activities referred to in paragraph 1 of this Article within the framework of any cultural or sports exchange programmed agreed to by both Contracting States shall be exempt from tax in the Contracting State in which these activities are exercised.
Article 18. PENSIONS
Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only in that State.
Article 19. GOVERNMENT SERVICE
1. a. Remuneration, other than a pension, paid by a Contracting State or a political subdivision, a local authority or statutory body thereof to an individual in respect of services rendered to that State or political subdivision, local authority or statutory body thereof shall be taxable only in that State.
b. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2. a. Any pension paid by, or out of funds created by, a Contracting State or a political subdivision, a local authority or a statutory body thereof to an individual in respect of services rendered to that State or political subdivision, local authority or statutory body thereof shall be taxable only in that State.
b. However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
3. The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision, a local authority or a statutory body thereof.
Article 20. STUDENTS
1. Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first - mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education of training shall no be taxed in that State, provided that such payments arise from sources outside that State.
2. Notwithstanding the provisions of Articles 14 and 15, remuneration for services rendered by a student or a business apprentice in a Contracting State shall not be taxed in that State, provided that such services are in connection with his studies or training and the amount of remuneration does not exceed US$ 2, 500 per year.
Article 21. TEACHERS AND RESEARCHERS
1. An individual who visits a Contracting State for the purpose of teaching or carrying out research at a university, college or other recognised educational institution in that State and who is or was immediately before that visit a resident of the other Contracting State, shall be exempt from tax in the first - mentioned State on remuneration for such teaching or research for a period not exceeding two years from the date of his first visit for that purpose.
2. The provisions of paragraph 1 of this Article shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.
Article 22. OTHER INCOME
Items of income which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable according to the taxation laws of the respective Contracting States.
Article 23. LIMITATION OF RELIEF
1. Where this Agreement provides (with or without other conditions) that income from sources in Vietnam shall be exempt from tax, or taxed at a reduced rate, in Vietnam and under the laws in force in Singapore the said income is subject to tax by reference to the amount thereof which is remitted to or received in Singapore and not by reference to the full amount thereof, then the exemption or reduction of tax to be allowed under this Agreement in Vietnam shall apply only to so much of the income as is remitted to or received in Singapore.
2. However, this limitation does not apply to income derived by the Government of Singapore or any person approved by the competent authority of Singapore for the purpose of this paragraph. The term "Government of Singapore" shall have the same meaning as in paragraph 4 (b) of Article 11.
Article 24. ELIMINATION OF DOUBLE TAXATION
1. The laws in force in either Contracting State shall continue to govern the taxation of income in respective Contracting States except where an express provision to the contrary is made in this Agreement. Where income is subject to tax in both Contracting States, relief from double taxation shall be given in accordance with the following paragraphs of this Article.
2.a. Where a resident of Vietnam derives income, which in accordance with the provisions of this Agreement, may be taxed in Singapore, Vietnam shall allow as a deduction from the Vietnamese tax on the income of that resident and amount equal to the tax paid in Singapore. Where such income is a dividend paid by a company which is a resident of Singapore to a resident of Vietnam which is a company owning directly or indirectly not less than 10 per cent of the share capital of the first - mentioned company, the deduction shall take into account the Singapore tax paid by that company on the portion of its profits out of which the dividend is paid. The deduction shall not, however, exceed that part of the Vietnamese tax, as computed before the deduction is given, which is attributed to that income.
b. For the purposes of sub - paragraph a above, the term "tax paid in Singapore" shall be deemed to include the amount of Singapore tax which, under the laws of Singapore and in accordance with this Agreement, would have been paid had the Singapore tax not been exempted or reduced in accordance with:
(i) the provisions of the sections 13 (2), 13A, 13B, 13F, 43A and 43C to 43K of the Income Tax Act, 1947 (As Amended) and the provisions of the Economic Expansion Incentives (Relief from Income Tax) Act, 1967 (As Amended), together with the respective connected regulations, as are effective on the date of signature of this Agreement or have been modified only in minor aspects after the date of signature of this Agreement; or
(ii) any other special incentive measures designed to promote economic development in Singapore which may be introduced hereafter in modification of, or in addition to, the existing laws, as may be agreed between the two competent authorities.
3. a. Where a resident of Singapore derives income from Vietnam or receives such income in Singapore which, in accordance with the provision of this Agreement, may be taxed in Vietnam, Singapore shall, subject to its laws regarding the allowance as a credit against Singapore tax of tax paid in any country other than Singapore, allow the Vietnamese tax paid, whether directly or by deduction, as a credit against the Singapore tax payable on the income of that resident. Where such income is a dividend paid by a company which is a resident of Vietnam to a resident of Singapore which is a company owning directly or indirectly not less than 10 per cent of the share capital of the first-mentioned company, the deduction shall take into account the Vietnamese tax paid by that company on the portion of its profits out of which the dividend is paid.
b. For the purposes of sub-paragraph a above, the term "tax paid in Vietnam" shall be deemed to include the amount of Vietnamese tax which, under the laws of Vietnam and in accordance with this Agreement, would have been paid had the Vietnamese tax not been exempted or reduced in accordance with:
(i) the provisions of the Articles 26, 27, 28, 32 or 33 of the Law on Foreign Investment in Vietnam (1987) and connected regulations, as are effective on the date of signature of this Agreement or have been modified only in minor aspects after the date of signature of this Agreement; or
(ii) any other special incentive measures designed to promote economic development in Vietnam which may be introduced hereafter in modification of, or in addition to, the existing laws, as may be agreed between the two competent authorities.
4. For the purposes of the credit referred to in paragraphs 2 (a) and 3 (a) of this Article, the tax imposed on the following items of income shall be deemed to be 10 per cent of the gross amount of the income where the tax paid is less than 10 per cent of the gross amount of such income:
a. in the case of income derived from Vietnam, income under Articles 10, 11, 12 and profits subject to Profits Remittance Tax;
b. in the case of income derived from Singapore, income under Articles 11 and 12.
Article 25. NON - DISCRIMINATION
1. The nationals of a Contracting State shall not be subject in the other Contracting State to any taxation or any requirement connected therewith which is other or move burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.
2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities, provided that this paragraph shall not:
a. prevent Vietnam from imposing on the profits attributable to a permanent establishment in Vietnam of a company which is a resident of Singapore further tax not exceeding 10 per cent on such profits as far as they are remitted from the permanent establishment to the head office;
b. apply to the taxation of permanent establishments in Vietnam of Singaporean enterprises in respect of oil exploration or production activities or in respect of activities which in the case of Vietnamese enterprises are subject to tax under the Law on Agricultural Land - Use Tax.
3. Nothing in this Article shall be construed as obliging a Contracting State to grant to:
a. residents of the other Contracting State any personal allowances, reliefs and reductions for tax purposes which it grants to its own residents, or
b. nationals of the other Contracting State those personal allowances, reliefs and reductions for tax purposes which it grants to its own nationals who are not resident in that Contracting State or to such other persons as may be specified in the taxation laws of that Contracting State.
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of other Contracting State, shall not be subjected in the first - mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first - mentioned State are or may be subjected.
5. Where a Contracting State grants tax incentives to its nationals designed to promote economic development in accordance with its national policy and criteria, it shall not be construed as discrimination under this Article.
6. The provisions of this Article shall apply only to taxes which are the subject of this Agreement.
Article 26. MUTUAL AGREEMENT PROCEDURE
1. Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Agreement.
3. The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
Article 27. EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Agreement. Such persons or authorities shall use the information only for such purposes.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
a. to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
b. to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c. to supply information which would disclose any trade, business, industrial, commercial, or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
Article 28. DIPLOMATIC AGENTS AND CONSULAR OFFICERS
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article 29. ENTRY INTO FORCE
Each of the Contracting States shall notify the other Contracting State of the completion of the procedures required by the law of the respective Contracting State for bringing into force this Agreement. This Agreement shall enter into force on the date of the later of these notification and shall thereupon have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amount paid on or after 1 January 1993.
(ii) in respect of other Vietnamese taxes, in relation to income, profits or gains arising on or after 1 January 1993;
b. in Singapore:
in respect of tax on income for any year of assessment beginning on or after 1 January 1994.
Article 30. TERMINATION
This Agreement shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Agreement at any time after five years from the date on which the Agreement enters into force by giving to the other Contracting State notice of termination, through the diplomatic channel, at least six months before the end of any calendar year. In such event the Agreement shall cease to have effect:
a. in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amount paid on or after 1 January in the calendar year immediately following the year in which the notice of termination is given;
(ii) in respect of other Vietnamese taxes, in relation to income, profits of gains arising on or after 1 January in the calendar year immediately following the year in which the notice of termination is given.
b. in Singapore:
in respect of tax on income for any year of assessment beginning on or after 1 January in the second calendar year following the year in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Hanoi this 2nd day of March of the year one thousand nine hundred and ninety-four in the Vietnamese and English languages, both texts being equally authoritative.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM H. E. Ho Te Minister Of Finance
FOR THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE COMMODORE (NS) Teo Chee Hean Minister Of State For Finance And Communications
PROTOCOL
At the time of signing the Agreement between the Government of the Republic of Singapore and the Government of the Socialist Republic of Vietnam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, both Governments have agreed that the following provisions shall form an integral part of the Agreement.
1. The exemption provided under paragraph 3 of Article 10 shall not apply to dividends derived by the Government of Singapore from the carrying on of commercial activities.
2. To the extent that profits or income may be taxed in Vietnam in accordance with the provisions of this Agreement and such profits or income is subject to a remittance tax under the taxation laws of Vietnam, the rate of the remittance tax shall not exceed.
a. the rates provided under paragraph 2 of Article 10 in the case of dividends.
b. 10 per cent in the case of profits remitted by a permanent establishment to its head office.
3. Notwithstanding the provisions of paragraph 2, the Government of Singapore shall be exempt from profits remittance tax in Vietnam. The term "Government of Singapore" shall have the same meaning as in paragraph 4(b) of Article 11.
4. With respect to the taxation of interest as provided under paragraph 2 of Article 11, if Vietnam, in any agreement for the avoidance of double taxation with any other State, provides for a rate of less than 10 per cent on the gross amount of interest, the same lower rate shall apply for the purposes of paragraph 2 of Article 11.
5. For so long as Vietnam continues to grant to investors licences under the Law on Foreign Investment in Vietnam, which specify the taxation to which the investor shall be subject, the imposition of such taxation shall not be regarded as breaching the terms of paragraph 2 of Article 25.
6. In relation to sub-paragraph (b) of paragraph 2 of the Article 25, the activities which in the case of Vietnamese enterprises are subject to tax under the Law on Agriculture Land - Use Tax shall be deemed, for the period commencing 1st January 1993 to 31st December 1993, to include the activities which in the case of Vietnamese enterprises are subject to tax under the Ordinance on Agriculture Tax as is effective up to 31st December 1993.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.
DONE in duplicate at Hanoi this 2nd day of March of the year one thousand nine hundred and ninety - four in the Vietnamese and English languages, both texts being equally authoritative.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM H. E. Ho Te Minister Of Finance
FOR THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE COMMODORE (NS) Teo Chee Hean Minister Of State For Finance And Communications
This Agreement entered into force on 9 September 1994
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Cộng hoà Xingapo
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Hồ Tế, Commodore(Ns) Teo Chee Hean
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02/03/1994
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09/09/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No. 25-L/CTN
Hanoi, August 23rd, 1993
ORDINANCE
ON THE PRIVILEGES AND IMMUNITIES RELATING TO DIPLOMATIC MISSION, CONSULAR POSTS AND REPRESENTATIVE OFFICES OF INTERNATIONAL ORGANISATIONS IN VIETNAM.
According to Article 91 of the 1992 Constitution of the Socialist republic of Vietnam, This Ordinance defines the privileges and immunities relating to the diplomatic missions, consular posts and representative offices of international organisations in Vietnam in accordance with the international treaties concluded or adhered to by Vietnam, and with international customs.
Chapter I
GENERAL PROVISIONS
Article 1
The State of the Socialist republic of Vietnam accords the privileges and immunities provided for in this Ordinance to the diplomatic missions, consular posts, representative offices of international organisations and their members and as well as members of their families for the purposes of facilitating the efficient performance of their official functions and duties in capacity of representatives in Vietnam.
Article 2
1. All persons who enjoy the privileges and immunities provided for in this ordinance shall have:
a) To respect laws and regulations, customs of Vietnam;
b) Not to interfere in Vietnam's internal affairs;
c) Not to use the premises of the mission and the residence of its members for the purposes incompatible with the functions of the mission.
2. Diplomatic agents and career consular officers shall mot practise any professional or commercial activity for personal profit in Vietnam.
Article 3.
In case an international treaty concluded or adhered to by Vietnam contains provisions different from those in this Ordinance, the provisions of such treaty shall be applied.
Article 4
In this Ordinance, the following expressions shall have the meanings hereunder assigned to them.
Expressions concerning diplomatic mission:
a) The " diplomatic mission " is foreign embassy in Vietnam.
b) The " premises of the mission " are the buildings or parts of buildings and the land ancillary used for the official purposes of the mission including the residence of the head of the mission.
c) the " official correspondence " of the diplomatic mission means all correspondence concerning the diplomatic mission and its functions.
d) The " head of the mission " is the ambassador, minister or charge d'affaires charged by the sending State with the duty of acting in that capacity.
e) The " member of the staff of the mission " are the members of the diplomatic staff, of the administrative and technical staff and off the service staff of the mission.
g) the " members of the diplomatic staff " are members of the mission having diplomatic rank, including the head of the mission.
h) The " members of the administrative and technical staff " of the mission are the members of the staff of the mission engaged in the administrative and technical work of the mission.
i) The " members of the family " of the diplomatic agent and of the administrative and technical staff are their spouses and children under 18 years old forming part of their households.
k) The " members of the services staff " of the mission are the members of the staff of the mission in the domestic service of the mission.
l) A " private attendant " is a person in the private employment for a member of the mission and paid by that member.
2. Expressions concerning consular post:
a) " Consular post " means foreign consulate-general, consulate, vice consulate or consular agency in Vietnam.
b) " Consular district " means the area assigned to a consular post for the exercise of consular functions.
c) " Consular premises " means the building or parts of buildings and the land ancillary there to used exclusively for the purposes of the consular post.
d) " Official correspondence " of the consular post includes all correspondence concerning the consular post and its functions.
e) " Head of consular post " means the person charged by sending State with the duty of acting in that capacity.
g) " Members of the consular post " means consular officers, consular employees and members of the service staff.
h) " Consular officer " means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions.
i) " Consular employee " means any person employed in the administrative or technical service of a consular post.
k) The " members of the family " of the consular officer and of the consular employee are their spouses and children under 18 years old forming part of their households.
k) " Member of the service staff " means member of a consular post employed in the domestic service.
l) " Member of the private staff " means a person who is employed exclusively in the private service of a member of the consular post and is paid by that member.
Chapter II
PRIVILEGES AND IMMUNITIES GRANTED TO DIPLOMATIC MISSIONS.
Article 5
1. The mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission, including the residence of the head of the mission, and on his means of transport.
2. The premises of the mission shall be inviolable. The Vietnamese authorities may not enter them, except with the consent of the head of the mission or other members of the mission authorised by him.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, confiscation, attachment or execution.
4. The Vietnamese authorities concerned shall take appropriate measures to protect the premises of the mission against any intrusion or damage.
Article 6.
1. The premises of the mission shall be exempt from dues and taxes, other than such as represent payment for specific services rendered.
2. The fees and charges levied by the mission in the course of its official duties in Vietnam shall be exempt from all dues and taxes.
Article 7
The archives and documents the diplomatic mission shall be inviolable.
Article 8.
1. Vietnamese State shall ensure free communication for all official purposes of the mission. In communicating with the Government and the other missions and consulates of the sending State, the missions may employ all appropriate means, including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless transmitter only with the consent of the Vietnamese Government.
2. The official correspondence of the mission shall be inviolable.
3. The diplomatic bag shall not be opened or detained. Diplomatic bag may include one or more than one packages. The packages constituting the diplomatic bag must be sealed and bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.
4. The diplomatic courier shall enjoy personal inviolability and be protected by Vietnamese State in the performance of his functions. He shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag
5. The sending state or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 4 of this article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge.
6. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorised port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.
Article 9.
Members of the mission shall enjoy freedom of movement and travel within Vietnamese territories except for areas the entry into which is prohibited and restricted by the regulations of the Vietnamese government.
Article 10.
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The Vietnamese State will treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 11.
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 12 of this Ordinance, his property, shall likewise enjoy inviolability.
Article 12.
1. A diplomatic agent shall enjoy immunities from the criminal jurisdiction of Vietnam. He shall also enjoy immunities from its civil jurisdiction and administrative sanctions, except in the case of:
a) A real action relating to private immovable property situated in Vietnamese territory in which he is involved as a private person;
b) An action relating to succession in which he is involved as a private person;
c) An action relating to any professional or commercial activity exercised by the diplomatic agent in Vietnam outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness. If he volunteers, the way to give evidence is up to him.
3. No measures of execution may be taken in respect of a diplomatic agent except in the case coming under sub-paragraph a, b and c of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
Article 13.
1. The immunity from criminal, civil jurisdiction and administrative sanctions of diplomatic agents and of persons enjoying immunity under Article 17 of this Ordinance may be waived expressly by the sending State.
2. The initiation of proceedings by a person mentioned in paragraph 1 of this Article shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
3. Waiver of immunity from civil or administrative jurisdiction as provided in paragraph 1 of this Article shall not be held to imply waiver of immunity in respect of the execution of the judgement and administrative sanctions, for which a separate waiver shall be necessary.
Article 14.
A diplomatic agent shall be exempt from all dues and taxes, except:
a) Indirect taxes;
b) Dues and taxes on private immovable property situated in Vietnam's territory;
c) Dues and taxes on succession or inheritance;
d) Dues and taxes on private income having its source in Vietnam;
e) Charges levied for specific services rendered;
g) Registration, court or record fees, mortgage dues and stamp duty with respect to immovable property, except provisions of paragraph 1 of Article 6 of this Ordinance.
Article 15.
Diplomatic agents shall be exempt from all personal contribution for the purposes of public welfare, security or national defence of the Vietnamese State.
Article 16.
1. Imported articles of diplomatic mission and diplomatic agents shall be exempt from customs duties, taxes and related charges other than charges for storage, cartage and similar services, on:
a) Articles for the official use of the mission;
b) Articles for the personal use of a diplomatic agent including article intended for his establishment;
2. Types, quantities and amounts of imported articles mentioned above, as well as their re-exportation and transfers in Vietnam shall be in accordance with regulations of the Vietnamese State.
3. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this Article, or article the import or export of which is prohibited by the law or controlled by the quarantine regulations of Vietnamese State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorised representative.
Article 17.
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of Vietnam, enjoy the privileges and immunities specified in Articles 10 to 16 of this Ordinance.
2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in Vietnam, enjoy the privileges and immunities specified in Articles 10 to 15 of this Ordinance; however the provision of paragraph 1 of Article 12, will be applied only when people mentioned-above are in the exercise of official functions. They shall also enjoy the privileges and immunities specified in Article 16, paragraph 1, in respect of article imported at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently resident in Vietnam shall enjoy immunities in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment.
4. Private servant of members of the mission shall, if they are not nationals of or permanently resident in Vietnam, be exempt from dues and taxes on the emoluments they receive by reason of their employment.
Article 18.
Vietnamese nationals or foreigners permanently resident in Vietnam who are accepted by the Vietnamese State as diplomatic agents of a foreign mission in Vietnam shall only enjoy immunity from criminal, civil jurisdiction and administrative sanctions and inviolability in respect of official acts performed in the exercise of their functions.
Article 19.
1. Every person entitled to the privileges and immunities specified in Chapter II of this Ordinance shall enjoy them from the moment he enters the Vietnamese territory or from the moment when his appointment is notified to the Ministry for Foreign Affairs. When his functions have come to an end, such privileges and immunities shall normally cease the moment when he leaves Vietnam.
2. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave Vietnam.
3. In the event of the death of a member of the mission not a national of or permanently resident in Vietnam or a member of his family forming part of his household, Vietnam shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in Vietnam the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in Vietnam was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.
Article 20.
1. Vietnam shall, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of Vietnam, and members of the families of such persons to leave Vietnam at the earliest possible moment.
2. If diplomatic relations are broken off between Vietnam and other State, or if a mission is permanently or temporarily recalled, Vietnam shall:
a) Respect and protect the premises of the mission, together with its property and archives, even in case of armed conflict;
b) The sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to Vietnam.
Chapter III
PRIVILEGES AND IMMUNITIES RELATING TO CONSULAR POSTS
Article 21.
1. The consular post shall have the right to use the flag and emblem of the sending State on the premises of the consular post, in the residence of the head of the consular post and on his means of transport when used on official business.
2. The consular premises shall be inviolable.
3. Vietnamese State shall take appropriate measures to protect the consular premises against any intrusion or damage.
4. The Vietnamese authorities may enter the premises only with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disasters requiring prompt protective action.
5. The premises of the consular post, their furnishings and other property thereon and its means of transport shall be immune from any form of requisition for purposes of national defence, security or public utility. If expropriation is necessary for such purposes all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending state.
Article 22.
The consular premises and the residence of the head of the consular post shall be exempted from dues and taxes, other than such as represent payment for specific services rendered.
Article 23.
The consular archives and documents shall be inviolable.
Article 24.
Members of the consular post shall enjoy freedom of movement and travel within Vietnamese territory except for areas the entry into which is prohibited and restricted by the regulations of the Vietnamese Government.
Article 25
1. The consular post may for official purposes communicate freely with the Government and the diplomatic missions and other consular post of the sending State.
In so doing, it may employ all appropriate means, including diplomatic or consular, couriers, code or cipher.
However the consular post may install and use a wireless transmitter for the purposes of communication only with the consent of the Vietnamese Government.
2. The official correspondence of the consular post shall be inviolable.
3. The packages constituting the consular bag must be sealed and bear visible external marks of their character and may contain only official correspondence and documents or articles intended exclusively for official use.
4. The consular bag shall not be opened or detained. Nevertheless, if the competent authorities of Vietnamese State have serious reason to believe that the bag contains something other than the correspondence, documents or article for official use of the consular post, they may request that the bag be opened in their presence by an authorised representative of the sending State. If this request is refused by the authorities of the sending State, the bag shall be returned to its place of origin.
5. The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. In the performance of his functions he shall be protected by the Vietnamese State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention. Vietnamese citizen or foreigner permanently resident in Vietnam shall be designated as consular courier only with the consent of the Vietnamese State.
6. The sending State, its diplomatic mission and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a commercial aircraft. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered as a consular courier. By arrangement with the appropriate local authorities, the consular post may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft.
Article 26.
The consular post may levy in Vietnam the fees and charges provided by the law and regulations of the sending State for consular acts, the sums collected in the form of the fees and charges as mentioned above shall be exempt from all dues and taxes of Vietnam.
Article 27.
1. Vietnamese State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their persons, freedom and dignity.
2. Consular officers shall enjoy personal inviolability except:
a) In the case of a grave crime and shall be liable to arrest or detention pending trial pursuant to a decision by the competent judicial authority.
b) In the execution of a judicial decision of final effect on the form of imprisonment or of restriction on personal freedom.
3. If criminal proceedings are instituted against a consular officer, he must appear before Vietnamese competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and in a manner which will hamper the exercise of consular functions as little as possible. In case the arrest or detention is applied to a consular officer, the proceedings against him shall be instituted with the minimum of delay.
4. In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the Vietnamese competent State authorities shall notify the head of the consular post. Should the latter be himself the object of any such measure, the Vietnamese Foreign Ministry shall notify the sending State through the diplomatic channel.
Article 28.
Consular officers and consular employees shall enjoy immunity from criminal jurisdiction when are in the exercise of the consular functions except in case of grave crime. They shall also enjoy immunity from civil and administrative jurisdiction except in case of a civil action concerning:
1. A contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State.
2. A traffic accident in which the third party claims for damage.
Article 29.
1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings but they are under no obligation to give evidence concerning matters connected with the exercise of their functions.
2. If a consular officer should decline to give evidence, no coercive measure or penalty maybe applied to him.
3. The consular employees and the members of the service staff shall not decline to give evidence when requested by Vietnamese competent authorities.
Article 30.
1. The sending State may waive, with regard to a member of the consular post, any of the privileges and immunities provided for in Article 27, 28 and 29. The waiver shall in all cases be express.
2. The initiation of proceedings by a consular officer or a consular employee in the matter where the might enjoy immunity from jurisdiction under Article 28 shall preclude him from invoking immunity from jurisdiction in respect of any counter-action directly connected with the principal action in which he is complainant.
3. The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings provided in Article 28 to members of the consular post shall not be deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision or administrative sanctions; in respect of such measure, a separate waiver shall be necessary.
Article 31.
Consular officers and consular employees and members of their families forming part of their households who are not Vietnamese citizens or not resident in Vietnam shall be exempt from all dues and taxes, except:
a) Indirect taxes;
b) Dues or taxes on private immovable property situated in Vietnam's territory;
c) Estate succession or inheritance duties, and duties on transfers;
d) Dues and taxes on private income including capital gains having its source in Vietnam and capital taxes relating to investments made in commercial or financial undertaking in Vietnam;
e) Charges levied for specific services rendered;
g) Registration, court or record fees, mortgage dues and stamp duties relating to immovable property except the provision of Article 22;
2. Member of the service staff who are not Vietnamese citizens or not resident in Vietnam shall be exempt from dues and taxes on the wages which they receive for their services.
Article 32.
1. A consular post and its officers shall be permitted entry of and be granted exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
a) Articles for the official use of the consular post.
b) Articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended for his establishment.
2. Consular employee shall enjoy the privileges and exemption specified in paragraph 1 of this Article in respect of articles imported at the time of first installation.
3. Kinds, quantities and amounts of imported articles as provided in paragraph 1 of this Article and as well as the re-exportation or the transfer of these articles in Vietnam shall be in accordance with the Vietnamese regulations.
4. Personal baggage accompanying consular officers and members of their families forming part of their household shall be exempt from inspection. It may be inspected only if there is serious reason to believe that it contains articles other than those referred to in sub-paragraph b of paragraph 1 of this article or articles the import or export of which is prohibited by the laws and regulations of Vietnam or which are subject to its quarantine laws and regulations.
Such inspection shall be carried out in the presence of the consular officer or member of his family concerned or his designee.
Article 33.
Members of the consular post and members of their families forming part of their households shall be exempt from all personal contributions for the purposes of public welfare, security or national defence of the Vietnamese State.
Article 34.
1. Every member of the consular post shall enjoy the privileges and immunities provided for in Chapter III of this Ordinance from the moment he enters the territory of Vietnam on proceeding to take up his post or if already in Vietnam from the moment, the Vietnamese Foreign Ministry is notified of the commencement of his duties. All these privileges and immunities shall cease at the moment he leaves Vietnam or concludes his duties.
2. In the event of the death of a member of the consular post, the members of his family forming part of his household shall continue to enjoy the privileges and immunities accorded to them until the expiry of a reasonable period enabling them to leave Vietnam.
3. In the event of the death of a member of the consular post who is not Vietnamese citizen or not resident in Vietnam, or of a member of his family forming part of his household, the Vietnamese State shall permit the export of the movable property of the deceased, with the exception of any such property acquired in Vietnam the export of which was prohibited at the time of his death. Vietnamese State shall not levy national, regional or municipal estate, succession or inheritance duties, and duties on transfer, on movable property the presence of which in Vietnam was due solely to the presence there of the deceased as a member of the consular post or as a member of the family of a member of the consular post.
Article 35.
1. In the even of a member of the diplomatic mission is entrusted to exercise consular functions, he shall enjoy privileges and immunities as a member of the diplomatic mission.
2. A consular officer may carry out diplomatic activities only with the consent of the Vietnamese State. However he shall not enjoy the diplomatic privileges and immunities.
Article 36.
1. Consular post may be headed by an honorary consular officer.
2. Vietnamese Government shall define procedures of acceptation and status of honorary consular officers in Vietnam.
Article 37.
1. Provisions of sub- paragraph 1 of Article 20 and of paragraph 1 of Article 21, of Article 24 and 26 of this Ordinance shall apply to consular posts headed by an honorary consular officer.
2. Provisions of sub-paragraphs a, b of paragraph 1 of Article 2 of paragraph 4 of Article 27; of Article 28; of paragraph 1 of Article 29; of Articles 30 and 34 shall apply to honorary consular officers.
3. The privileges and immunities provided in Chapter III of this Ordinance shall not be accorded to members of the family of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer.
Article 38.
1. The consular archives and documents of a consular post headed by an honorary consular officer shall be inviolable as specified in Article 23, provided that they are kept separate from other papers and documents, and in particular, from the private correspondence of the head of a consular post and of any person working with him, and from the materials, books or documents relating to their profession or trade.
2. Consular post headed by honorary consular officer as well as the government of the sending State and its other diplomatic mission and consular posts shall only use diplomatic and consular couriers, diplomatic and consular bags and messages in code or cipher to communicate with the consular post headed by honorary consular officer in Vietnam with the consent of the Vietnamese State for each case.
3. A consular post headed by honorary consular officer shall enjoy the privileges and immunities on customs provided in sub-paragraph a of paragraph 1 of Article 32, but limited to : national flag, national emblem, consular signboard, seals and stamps, books, official printed matter, office furniture, office equipment and similar articles supplied by or at the instance of the sending State to the consular post.
4. An honorary consular officer shall be exempt from the taxes and charges towards sum of money that paid for the exercise of the consular functions by the sending State.
Chapter IV
PRIVILEGES AND IMMUNITIES RELATING TO REPRESENTATIVE OFFICES OF INTERNATIONAL ORGANISATIONS
Article 39.
Representative office of Organisation of the United Nations system and its members as well as members of their families forming part of their households shall enjoy privileges and immunities as specified in international treaties which Vietnam has signed or acceded to.
Article 40.
Representative office of inter-governmental organisation which is outside of the United Nations system and its members as well as members of their families forming part of their household shall enjoy the privileges and immunities as provided in the international treaties that Vietnam has signed with that international organisation.
Article 41.
Representative office of non-governmental organisation and its members as well as members of their families forming part of their households shall enjoy the privileges and immunities provided by Vietnamese Government towards that organisation on the basis of the agreement between the two sides.
Article 42.
Delegation of international organisation, their members and those who accompany them, coming to Vietnam for official, working visit or transiting shall enjoy necessary privileges and immunities according to international treaties concluded or adhered to by Vietnam or to Vietnam's laws and the regulations.
Chapter V
STATE MANAGEMENT OF THE EXERCISE OF PRIVILEGES AND IMMUNITIES RELATING TO DIPLOMATIC MISSIONS, CONSULAR POSTS AND REPRESENTATIVE OFFICES OF INTERNATIONAL ORGANISATIONS IN VIETNAM
Article 43.
State management of the implementation of the privileges and immunities provided in this Ordinance includes:
1. Promulgation of regulations concerning the implementation of the Ordinance.
2. Guidance of the implementation of the Ordinance.
3. Inspections and supervisions of the implementation of the Ordinance and handling of the violation of the Ordinance.
4. Negotiations, signing agreements, acceding to international treaties on privileges and immunities relating to diplomatic missions, consular posts and representative offices of international organisations.
Article 44.
1. The Government conducts unified State management of the implementation of the privileges and immunities concerning diplomatic mission, consular posts and representative offices of international organisations in Vietnam.
2. The Foreign Ministry is authorised by the Government to take responsibilities and competence's in the performance of State management on this field.
3. Other ministries, branches and local administrations at all levels within their duties and authorities shall have responsibilities to co-operate with the Foreign Ministry in the implementation of State management on this field.
4. Economic and social organisations and Vietnamese citizens shall have responsibilities to support State competent bodies in correctly implementing regulations of this Ordinance.
Article 45.
Those who violate provisions of this Ordinance shall be dealt with under Vietnamese laws and in accordance with international law and customs.
Chapter VI.
FINAL PROVISION
Article 46.
The privileges and immunities specified in this Ordinance shall be applied in respect of foreign delegations, their official members as well as those who accompany them coming to Vietnam for official, working visits or transits on the reciprocal basis and in accordance with international law and customs.
Article 47.
1. Diplomatic agents, consular officers and their families' members transiting Vietnam to their work or to their homes shall enjoy the privileges and immunities specified in this Ordinance that are necessary for their transit.
2. Other members of diplomatic missions and consular posts as well as their families transiting Vietnam to their work or to their homes shall be given favourable conditions for their transit.
3. Correspondence and other forms of communication including codes and ciphers of the diplomatic missions and consular posts, diplomatic couriers and bags, consular couriers and bags when transiting Vietnam shall enjoy the right to be free and protected as specified by receiving State in accordance with the provisions of this Ordinance.
Article 48.
1. In the application of the provisions of this Ordinance, the Vietnamese State shall not discriminate as between State.
2. However, in some cases, the Vietnamese State may:
a) Apply any of the provisions of this Ordinance restrictively because of a similar restrictive application of that provision to Vietnamese diplomatic mission or consular post in the sending State.
b) Extend, on the basis of bilateral agreement or international customs recognised by Vietnam, more favourable treatment than is required by the provisions of this Ordinance to diplomatic mission or consular post.
Article 49.
All previous regulations contrary to this Ordinance shall be repealed.
The Government shall stipulate detailed provisions regarding the implementation of this Ordinance.
FOR THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM CHAIRMAN Nong Duc Manh
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25-L/CTN
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Pháp lệnh
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Uỷ ban Thường vụ Quốc hội
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Nông Đức Mạnh
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23/08/1993
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07/09/1993
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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33. CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION
(Concluded 29 May 1993)
The States signatory to the present Convention,
Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,
Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,
Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,
Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986),
Have agreed upon the following provisions –
Chapter I –
SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are –
a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law;
b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.
Article 2
(1) The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin") has been, is being, or is to be moved to another Contracting State ("the receiving State") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.
(2) The Convention covers only adoptions which create a permanent parent-child relationship.
Article 3
The Convention ceases to apply if the agreements mentioned in Article 17, sub-paragraph c, have not been given before the child attains the age of eighteen years.
Chapter II –
REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS
Article 4
An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin –
a) have established that the child is adoptable;
b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests;
c) have ensured that
(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,
(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,
(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only after the birth of the child; and
d) have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,
(2) consideration has been given to the child's wishes and opinions,
(3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of any kind.
Article 5
An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State –
a) have determined that the prospective adoptive parents are eligible and suited to adopt;
b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and
c) have determined that the child is or will be authorised to enter and reside permanently in that State.
Chapter III –
CENTRAL AUTHORITIES AND ACCREDITED BODIES
Article 6
(1) A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
(2) Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
(1) Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.
(2) They shall take directly all appropriate measures to –
a) provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;
b) keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.
Article 8
Central Authorities shall take, directly or through public authorities, all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.
Article 9
Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to –
a) collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;
b) facilitate, follow and expedite proceedings with a view to obtaining the adoption;
c) promote the development of adoption counselling and post-adoption services in their States;
d) provide each other with general evaluation reports about experience with intercountry adoption;
e) reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.
Article 10
Accreditation shall only be granted to and maintained by bodies demonstrating their competence to carry out properly the tasks with which they may be entrusted.
Article 11
An accredited body shall –
a) pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State of accreditation;
b) be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and
c) be subject to supervision by competent authorities of that State as to its composition, operation and financial situation.
Article 12
A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorised it to do so.
Article 13
The designation of the Central Authorities and, where appropriate, the extent of their functions, as well as the names and addresses of the accredited bodies shall be communicated by each Contracting State to the Permanent Bureau of the Hague Conference on Private International Law.
Chapter IV –
PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION
Article 14
Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.
Article 15
(1) If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.
(2) It shall transmit the report to the Central Authority of the State of origin.
Article 16
(1) If the Central Authority of the State of origin is satisfied that the child is adoptable, it shall –
a) prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child;
b) give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background;
c) ensure that consents have been obtained in accordance with Article 4; and
d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.
(2) It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.
Article 17
Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if –
a) the Central Authority of that State has ensured that the prospective adoptive parents agree;
b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;
c) the Central Authorities of both States have agreed that the adoption may proceed; and
d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.
Article 18
The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.
Article 19
(1) The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.
(2) The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.
(3) If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.
Article 20
The Central Authorities shall keep each other informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.
Article 21
(1) Where the adoption is to take place after the transfer of the child to the receiving State and it appears to the Central Authority of that State that the continued placement of the child with the prospective adoptive parents is not in the child's best interests, such Central Authority shall take the measures necessary to protect the child, in particular –
a) to cause the child to be withdrawn from the prospective adoptive parents and to arrange temporary care;
b) in consultation with the Central Authority of the State of origin, to arrange without delay a new placement of the child with a view to adoption or, if this is not appropriate, to arrange alternative long-term care; an adoption shall not take place until the Central Authority of the State of origin has been duly informed concerning the new prospective adoptive parents;
c) as a last resort, to arrange the return of the child, if his or her interests so require.
(2) Having regard in particular to the age and degree of maturity of the child, he or she shall be consulted and, where appropriate, his or her consent obtained in relation to measures to be taken under this Article.
Article 22
(1) The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State.
(2) Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15 to 21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or persons who –
a) meet the requirements of integrity, professional competence, experience and accountability of that State; and
b) are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.
(3) A Contracting State which makes the declaration provided for in paragraph 2 shall keep the
Permanent Bureau of the Hague Conference on Private International Law informed of the names and addresses of these bodies and persons.
(4) Any Contracting State may declare to the depositary of the Convention that adoptions of children habitually resident in its territory may only take place if the functions of the Central Authorities are performed in accordance with paragraph 1.
(5) Notwithstanding any declaration made under paragraph 2, the reports provided for in Articles 15 and 16 shall, in every case, be prepared under the responsibility of the Central Authority or other authorities or bodies in accordance with paragraph 1.
Chapter V –
RECOGNITION AND EFFECTS OF THE ADOPTION
Article 23
(1) An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph c), were given.
(2) Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities.
Article 24
The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.
Article 25
Any Contracting State may declare to the depositary of the Convention that it will not be bound under this Convention to recognise adoptions made in accordance with an agreement concluded by application of Article 39, paragraph 2.
Article 26
(1) The recognition of an adoption includes recognition of
a) the legal parent-child relationship between the child and his or her adoptive parents;
b) parental responsibility of the adoptive parents for the child;
c) the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.
(2) In the case of an adoption having the effect of terminating a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting State where the adoption is recognised, rights equivalent to those resulting from adoptions having this effect in each such State.
(3) The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognises the adoption.
Article 27
(1) Where an adoption granted in the State of origin does not have the effect of terminating a pre- existing legal parent-child relationship, it may, in the receiving State which recognises the adoption under the Convention, be converted into an adoption having such an effect –
a) if the law of the receiving State so permits; and
b) if the consents referred to in Article 4, sub-paragraphs c and d, have been or are given for the purpose of such an adoption.
(2) Article 23 applies to the decision converting the adoption.
Chapter VI –
GENERAL PROVISIONS
Article 28
The Convention does not affect any law of a State of origin which requires that the adoption of a child habitually resident within that State take place in that State or which prohibits the child's placement in, or transfer to, the receiving State prior to adoption.
Article 29
There shall be no contact between the prospective adoptive parents and the child's parents or any other person who has care of the child until the requirements of Article 4, sub-paragraphs a) to c), and Article 5, sub-paragraph a), have been met, unless the adoption takes place within a family or unless the contact is in compliance with the conditions established by the competent authority of the State of origin.
Article 30
(1) The competent authorities of a Contracting State shall ensure that information held by them concerning the child's origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.
(2) They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.
Article 31
Without prejudice to Article 30, personal data gathered or transmitted under the Convention, especially data referred to in Articles 15 and 16, shall be used only for the purposes for which they were gathered or transmitted.
Article 32
(1) No one shall derive improper financial or other gain from an activity related to an intercountry adoption.
(2) Only costs and expenses, including reasonable professional fees of persons involved in the adoption, may be charged or paid.
(3) The directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered.
Article 33
A competent authority which finds that any provision of the Convention has not been respected or that there is a serious risk that it may not be respected, shall immediately inform the Central Authority of its State. This Central Authority shall be responsible for ensuring that appropriate measures are taken.
Article 34
If the competent authority of the State of destination of a document so requests, a translation certified as being in conformity with the original must be furnished. Unless otherwise provided, the costs of such translation are to be borne by the prospective adoptive parents.
Article 35
The competent authorities of the Contracting States shall act expeditiously in the process of adoption.
Article 36
In relation to a State which has two or more systems of law with regard to adoption applicable in different territorial units –
a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
b) any reference to the law of that State shall be construed as referring to the law in force in the relevant territorial unit;
c) any reference to the competent authorities or to the public authorities of that State shall be construed as referring to those authorised to act in the relevant territorial unit;
d) any reference to the accredited bodies of that State shall be construed as referring to bodies accredited in the relevant territorial unit.
Article 37
In relation to a State which with regard to adoption has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
Article 38
A State within which different territorial units have their own rules of law in respect of adoption shall not be bound to apply the Convention where a State with a unified system of law would not be bound to do so.
Article 39
(1) The Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.
(2) Any Contracting State may enter into agreements with one or more other Contracting States, with a view to improving the application of the Convention in their mutual relations. These agreements may derogate only from the provisions of Articles 14 to 16 and 18 to 21. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.
Article 40
No reservation to the Convention shall be permitted.
Article 41
The Convention shall apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin.
Article 42
The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.
Chapter VII –
FINAL CLAUSES
Article 43
(1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session.
(2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.
Article 44
(1) Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph 1.
(2) The instrument of accession shall be deposited with the depositary.
(3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.
Article 45
(1) If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.
(2) Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.
Article 46
(1) The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 43.
(2) Thereafter the Convention shall enter into force –
a) for each State ratifying, accepting or approving it subsequently, or acceding to it, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;
b) for a territorial unit to which the Convention has been extended in conformity with Article 45, on the first day of the month following the expiration of three months after the notification referred to in that Article.
Article 47
(1) A State Party to the Convention may denounce it by a notification in writing addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.
Article 48
The depositary shall notify the States Members of the Hague Conference on Private International Law, the other States which participated in the Seventeenth Session and the States which have acceded in accordance with Article 44, of the following –
a) the signatures, ratifications, acceptances and approvals referred to in Article 43;
b) the accessions and objections raised to accessions referred to in Article 44;
c) the date on which the Convention enters into force in accordance with Article 46;
d) the declarations and designations referred to in Articles 22, 23, 25 and 45;
e) the agreements referred to in Article 39;
f) the denunciations referred to in Article 47.
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at The Hague, on the 29th day of May 1993, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Seventeenth Session and to each of the other States which participated in that Session.
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Khongso
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Công ước
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***
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***
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29/05/1993
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01/02/2012
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
AGREEMENT BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF THE FRENCH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF TAX EVASION AND TAX FRAUD WITH RESPECT TO TAXES ON PROPERTIES AND INCOME
The Government of the Socialist Republic of Vietnam and the Government of French Republic.
Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of tax evasion and contraband with respect to taxes on properties and income,
Have agreed as follows:
Article 1. Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. Taxes covered in the Agreement
1. This Agreement shall apply to taxes on income and properties imposed in a Contracting State or local government of such State irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income and properties all taxes imposed on total income and properties, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages and salaries paid by enterprises as well as taxes on capital appreciation.
3. The existing taxes to which the Agreement shall apply are in particular:
a) In Vietnam:
(i) the personal income tax;
(ii) the profit tax;
(iii) the profit remittance tax;
(iv) the foreign contractor tax (tax imposed on profits);
(v) the foreign petroleum sub-contractor tax;
(vi) the charges with tax character imposed on peroperty;
(hereinafter referred to as "Vietnamese tax");
b) In France:
(i) the income tax;
(ii) the corporate tax;
(iii) the tax imposed on property;
(hereinafter referred to as "French tax").
4. This Agreement shall also apply to any identical or substantially similar taxes, which are imposed after the date of signature of this Agreement in addition to, or in place of existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in their respective taxation laws within a reasonable period of time after such changes.
Article 3. General definitions
1. For the purposes of this Agreement, unless the context otherwise requires:
a) The term "Vietnam" means the Socialist Republic of Vietnam and when used in a geographical sense includes:
(i) any area beyond the territorial seas of Vietnam which, in accordance with international law and the laws of Vietnam, is an area within which Vietnam exercises sovereign rights with respect to the seabed and subsoil and their natural resources;
(ii) the seas and airspace above every area referred to in subparagraph (i) in respect of any activity carried on in connection with the exploration for and exploitation of natural resources referred to therein;
b) the term "France” means the provinces in Europe and oversea territories of the Frech Republic, includes its territorial waters and beyond its territorial waters where according to the international law, the French Republic exercises sovereign rights in exploration for and exploitation of natural resources with respect to the seabed and subsoil and above waters.
c) the terms "a Contracting State" and "the other Contracting State" mean Vietnam or France as the context requires;
d) the term "person" includes an individual, a company and any other organization;
e) the term "company” means any organization or any entity which is treated as an organization for tax purposes;
f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
g) the term "international traffic" means any transport by a ship or aircraft operated by a resident of a Contracting State, except when the transport is operated solely between places in the other Contracting State.
h) the term "competent authorities" means:
(i) in the case of Vietnam, the Minister of Finance or his authorised representative;
(ii) in the case of France - the Minister of Finance or his authorised representative;
2. As regards the application of this Agreement by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which the Agreement applies.
Article 4. Resident
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the law of that State, is liable to taxation therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. However, this term does not include the residents who are liable to tax in that State only in respect of income from sources in that State or properties situated in that State.
2. Where by reason of the provisions of the Clause 1, an individual is a resident of both Contracting States, then his status shall be determined as follows:
a) he shall be deemed to be a resident of the Contracting State in which he has a permanent home available to him. If he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
b) if the Contracting State in which he has his center of vital interests cannot be determined, or if he does not have a permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
d) if each Contracting State considers him to be its national or if he is a national of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of the Clause 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State in which its place of effective management is situated.
Article 5. Permanent establishment
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2. The term "permanent establishment" shall include especially:
a) a place of management;
b) a branch;
c) an office;
d) a factory;
e) a workshop;
f) a mine, an oil or gas well, quarry or other place of extraction of natural resources;
3. a building site, construction, installation or assembly project is only considered a permanent establishment if its operation time exceeds 183 days.
4. Notwithstanding the provisions of this Article, the term "permanent establishment" does not include:
a) the use of facilities solely for the purpose of storage, display delivery of goods or assets belonging to the enterprise;
b) the maintenance of a stock of goods or assets belonging to the enterprise solely for the purpose of storage, display or delivery;
c) the maintenance of a stock of goods or assets belonging to the enterprise solely for the purpose of processing by another enterprise;
d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or assets or for collecting information for the enterprise.
e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f) the maintenance of a fixed place of business solely for any combination of activities mentioned in point (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
5. Notwithstanding the provisions of Clauses 1 and 2, where a person - other than an agent of an independent status to whom the provisions of Clause 6 apply - is acting on behalf of an enterprise and commonly has the authority to sign the contracts in the name of that enterprise in a Contracting State, that enterprise shall be deemed to have a permanent establishment in that Contracting State for any activity which is done by that person for the enterprise, unless the activities of such person are limited to the activities specified in Clause 4 and such activities, if done through a fixed business establishment, shall not make it become a permanent establishment in accordance with the provisions of that Clause
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, commission body or any other agent of an independent status, where such persons are acting in the ordinary course of their business.
7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other Contracting State (whether through a permanent establishment or otherwise), shall not of itself constitute either company as a permanent establishment of the other.
Article 6. Income from immovable property
1. Income derived from immovable property of a resident in a Contracting State (including income from agriculture or forestry) is taxable only in the Contracting State in which such property is situated.
2. The term "immovable property" shall be defined in accordance with the law of the Contracting State in which the property in question is situated. The term "immovable property" shall in any case include the property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property.
3. The provisions of Clause 1 shall apply to all income derived from the direct use, letting, sharing or use in any other form of immovable property.
4. When ownership of shares, share capital or other interests in a company or in another entity allows rights holders to benefit the immovable property situated in a Contracting State which this company or this entity owns, then the income that the owner obtains from the direct use, letting or use in any other forms of its right to benefit shall be taxed in this State.
5. The provisions of Clause 1, 3 and 4 shall also apply to income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
Article 7. Business profits
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other Contracting State, but only on the profits attributable to that permanent establishment.
2. Subject to the provisions of Clause 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses which include the executive and general administrative expenses so incurred, whether in the Contracting State in which the permanent establishment is situated or elsewhere.
4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in Clause 2 shall preclude such Contracting State from determining the profits to be taxed by such an apportionment as may be customary. The method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
6. For the purposes of the preceding clauses, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reasons to the contrary.
7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
Article 8. Shipping and air transport
1. Income derived by a resident of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that Contracting State.
2. The provisions of Clause 1 shall also apply to income from the participation in a pool, a joint business or an international operating agency.
Article 9. Associated enterprises
1. Where:
a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
and in either case, conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would have accrued to one of the enterprises, but, by the reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have been accrued to the enterprise of the first mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. To determine this adjustment, the other provisions of this Agreement shall be considered and the competent authorities of the Contracting States shall consult each other when necessary.
Article 10. Dividends
1. Dividends arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that Contracting State, but, if the recipient is the beneficial owner of the dividends, the tax so charged shall not exceed:
a) when the company paying dividends is a resident of Vietnam:
(i) 7 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly at least 50 per cent of the capital in the company paying the dividends;
(ii) 10 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly at least 25 per cent of the capital in the company paying the dividends;
(iii) 15 per cent of the gross amount of the dividends in all other cases.
b) when the company paying dividends is a resident of Vietnam:
(i) 5 percent of the gross amount of the dividends of the recipient is a company (excluding partnerships) which owns at least 10 percent of the capital of the company paying the dividends;
(ii) 15 per cent of the gross amount of the dividends in all other cases.
This Clause shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. A resident of Vietnam who has received dividends from a company which is a resident of France may receive the deduction in case this deduction was actually paid by the company under this dividend. The total untaxed deduction to be refunded is regarded as dividend under the application of this Agreement. It shall be taxed in France in conformity with the provisions of Clause 2.
4. The term “dividends” as used in this Article means income from shares, “jouissance” shares or “jouissance” rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. This term does not include the Iincomes applicable in Article 15.
5. The provisions of Clauses 1, 2 and 3 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding by virtue of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 13, as the case may be, shall apply.
6. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undestributed profits consist wholly or partly of profits or income arising in such other State.
Article 11. Royalties
1. Royalties arising in a Contracting State and paid to a resident of a other Contracting State may be taxed in that other Contracting State.
2. However, such royalties may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 10 percent of the gross amount of the royalty.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work, including cinematograph films, films, tapes or disc for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalty, being a resident of a Contracting State, carries on industrial or commercial activity in the other Contracting State in which the royalty arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein and the right or property in respect of which the royalty is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 13, as the case may be, shall apply.
5. Royalty shall be deemed to arise in a Contracting State when the payer is that State itself, a political sub division, a local authority or a resident of that State. Where, however, the person paying the royalty, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the royalty is paid was incurred, and such royalty is borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the Contracting State in which the permanent establishment or a fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other persons, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
Article 12. Gains from the alienation of property
1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2. Gains derived from the alienation of shares, part of the capital or other interests in a company or another entity which owns, directly or indirectly, the immovable property situated in a State or rights to this type of property must be taxed in this State if such gains are subject to the same tax system like the gains arising from the alienation of immovable property according to the law of this State.
3. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or together with the whole enterprise) may be taxed in that other State.
4. Gains derived by a resident of a Contracting State from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
5. Gains from the alienation of any property other than that referred to in Clauses 1, 2, 3 and 4 shall be taxable only in the Contracting State of which the alienator is a resident.
Article 13. Independent personal services
1. Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If that person has such a fixed base, his income can be taxed in that Contracting State but only on the income attributed to this fixed base.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
Article 14. Dependent personal services
1. Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State, unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other Contracting State.
2. Notwithstanding the provisions of Clause 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in the Calendar year; and
b) the remuneration is paid by or on behalf of an employer or employer’s representative who is not a resident of the other Contracting State; and
c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other Contracting State.
3. Notwithstanding the preceding provisions of this Article, the remuneration derived by a resident of a Contracting State in respect of an employment excercised aboard a ship or aircraft operated in international traffic may be taxed only in the Contracting State.
Article 15. Director’s fee
Directors' fees and similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.
Article 16. Income of artistes and athletes
1. Notwithstanding the provisions of Articles 13 and 14, income derived by entertainers such as a theater, motion picture, radio or television artistes, and musicians, and by athletes, from their personal activities as such, may be taxed in the Contracting State in which the activities are exercised.
2. Where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer of athlete himself but to another person, that income may, notwithstanding the provisions of Articles 7, 13 and 14, be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised.
3. Notwithstanding the provisions of Clause 1, the incomes derived by an artiste or athlete as a resident of a Contracting State from his personal activities in that Contracting State in his capacity as such shall be taxed in the first-mentioned State if such activities in the other State are substantially supported by public funds of the first-mentioned State, by a local authority or statutory body of this Country.
4. Notwithstanding the provisions of Clause 2, when the incomes derived from activity of artiste or athlete as a resident of a Contracting State in his capacity as such in other Contracting State are not given to that artiste or athlete but to another person, such incomes, regardless of the provisions of Articles 7, 13 and 14, shall be taxed in the first-mentioned State in case that person is substantially supported by public funds of this State, by a local authority or statutory body of this Country.
Article 17. Pension
Subject to the provisions of Clause 2 of Article 18, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only in that State.
Article 18. Income from government service
1. a) Remuneration, other than a pension, paid by the Government of a Contracting State, local authority or statutory body to an individual in respect of services rendered to that State, local authority or statutory body thereof shall be taxable only in that State.
b) However, such income shall be taxable only in the other Contracting State if the services are rendered in that State and the individual as a resident of that State who is a national of that State or not being a national of the first-mentioned Contracting State.
2. a) Any pension paid by a Contracting State, local authority or statutory body thereof to an individual directly or deducted from the funds they found to pay an individual in respect of services rendered to that State, local authority or statutory body thereof shall be taxable only in that State.
b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident and a national of that Contracting State but not a national of the first-mentioned State.
3. The provisions of this Article 14, 15 and 17 shall apply to remuneration and pension in respect of services rendered in connection with any business carried on by either of the Contracting State, a political subdivision or a local authority thereof.
Article 19. Income of students
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first-mentioned Contracting State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall be exempt from tax of the first-mentioned Contracting State, provided that such payments are made to him from outside that first-mentioned Contracting State.
Article 20. Other income
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that Contracting State.
2. The provisions of Clause 1 shall not apply to income, other than income from immovable property as defined in Clause 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other Contracting State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 13, as the case may be, shall apply.
Article 21. Property
1. Property is the immovable property set forth in Article 6 that is derived by a resident of a Contracting State and is situated in the other Contracting State will be taxed in that State. The provisions of this clause shall also apply to the property as shares, capital or other rights set forth in Clause 2 of Article 12 to be taxed in the Contracting State where the property is situated.
2. Property is the immovable property integrated into business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, or the movable property belonging to a fixed base that a resident of a Contracting State has in the other Contracting State to perform an independent profession, must be taxed only in that State.
3. The property of a resident of a Contracting State is ships and aircraft operated in international traffic as well as the movable property pertaining to the business of such ships and aircraft shall be taxed in this State.
4. Other property of a resident of a Contracting State shall be taxed only in this State.
Article 22. Elimination of double taxation
1. In the case of Vietnam, double taxation shall be avoided as follows:
Where a resident in Vietnam derives income or property which shall be levied in France in accordance with the provisions of this Agreement, Vietnam shall:
a) allow as a credit against the tax imposed on the income of that resident an amount equal to the income tax paid in France.
b) allow as a credit against the tax imposed on the property of that resident an amount equal to the proerty tax paid in France.
The amount of credit in both cases, however, shall not exceed the amount of the Vietnamese tax on that income or property, before permitted tax credit, for such income or property computed in accordance with the taxation laws and regulations of Vietnam.
2. In the case of France, double taxation shall be avoided as follows:
a) The income generated in Vietnam and taxed or only taxed in Vietnam in accordance with the provisions of this Agreement shall be deemed to be taxed according to the tax treatment of France, if the person entitled to such income is a resident of France and if such income is not entitled to exemption or reduction of corporate tax in accordance with French law. In this case, the tax paid in Vietnam is not deducted from such income, but the income beneficiary is entitled to a tax credit for tax to be paid in France. This tax credit is equal to:
(i) for all income other than the income set forth in point (ii) below, the French tax is corresponding to such income;
(ii) for the income set forth in Articles 10, 11 and Clauses 1 and 2 of Article 12, Clause 3 of Article 14, Article 15 and Clause 1 and 2 of Article 16, with the tax paid in Vietnam according to the provisions in the articles or that amounts; however, that deduction can not exceed the total number of French tax corresponding to such income.
b) As regulated in Point a) of this Clause, when the tax credit is deducted from the tax payable in France equals the total taxes payable in Vietnam, tax credit is deemed to be equal to the tax that should have been paid in Vietnam according to the application of laws of Vietnam and limitations set forth in this Agreement if the corresponding income not entitled to the tax exemption or reduction effective from the date of signature of this Agreement such as the exemption or reduction provided for in the law foreign investment in Vietnam dated 29/12/1987. The competent authorities of both Contracting States shall adopt a general agreement within a definite period of time to extend such regulations on tax exemption or reduction that may arise after the date of signature of this Agreement for the purpose of promoting the economic development of Vietnam.
c) With respect to the application of point a) to the income set forth in Article 11, when the total taxes paid in Vietnam under the provisions of these articles - excluding taxes which are regardded as paid under the provisions at point b - exceed the total taxes payable in France corresponding to the income stated, then a resident of France receiving such income may lodge a complaint about his case to the French competent authorities. If the French authorities see that the result of above reality shall lead to taxation which can not be regarded as taxation of after-tax income, the authorities may, in defined conditions, may deduct the excessive tax item in the total taxes paid in Vietnam from the taxes payable in France levied on the other gains from foreign sources of this resident.
d) A French resident derives a property which must be levied in Vietnam according to the provisions in Clause 1 or 2 of Article 21 must also be levied in France. The tax payable in France shall be calculated on the property after deduction of tax credit equal to the total taxes paid in Vietnam levied on this property. This tax credit must not exceed the corresponding total tax payable in France levied on this property.
Article 23. Mutual agreement
1. Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of this Agreement.
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3. The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding clauses.
5. The competent authorities of the two States may adjust the applicable procedures of the Agreement, especially for those procedures that the residents of a State must complete to receive the exemption from the other State the tax exemption, reduction and incentives specified in the Agreement. These procedures may include the presentation of a residence certificate form which specifies the source and the total number or value of the relevant items of income or property with the certification of the tax authorities of the first-mentioned State.
Article 24. Exchange of information
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement and of the domestic laws of the Contracting States concerning taxes covered by the Agreement in so far as the taxation thereunder is in accordance with this Agreement. The exchange of information shall not be restricted by Article 1. Any information so exchanged shall be treated as confidential in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Agreement. Such persons or authoities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. In no case shall the provisions of clause 1 be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b) to supply details which are not disclosed under the laws or in the normal course of the administration of that or of the other Contracting State;
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy or national security.
Article 25. Employees of diplomatic missions and consular establishments
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
Article 26. Territorial scope of extended application
1. This Agreement may also be applied to expand to, verbatim or with the necessary additions, the overseas territories and other territorial units of the French Republic which impose taxes with similar characters as those applicable in this Agreement. The application of such expansion takes effect from the date of a general agreement set forth between the two State by way of exchange of diplomatic notes or other procedures in line with the constitutional provisions of the two States. This Agreement also stipulates that, if possible, the necessary changes to the Agreement and the implementation conditions of Agreement in overseas territories and other territorial units where the Agreement applies with expansion.
2. Unless otherwise agreed by the two State, that one of the two State annuls this Agreement under the provisions of article 28 shall also terminate of implementation of this Agreement in any territory or territorial unit where Agreement applies with extension under the provisions of this article.
Article 27. Entry into force
1. Each Contracting Party shall notify the other Contracting Party of the completion of the necessary procedures related to the entry into force of this Agreement. This Agreement shall enter into force on the first day of the second month after the date of receipt of the final notification.
2. The provisions of this Agreement shall apply for the first time:
a) in respect of taxes withheld at source, on amounts levied after the effective date of this Agreement.
b) for taxes imposed on income or incomes implemented in the solar year or current accounting year on the effective date of the Agreement;
c) for taxes imposed on property and owned property to 01/01 of effective year of this Agreement.
Article 28. Termination
1. This Agreement shall remain in force indefinitely. However, after the solar fifth year after the effective year of this Agreement, either State may terminate this Agreement at the end of a calendar year after giving prior notice of at least 6 months through diplomatic channel.
2. In the event of termination, the provisions of this Agreement shall apply the last time:
a) for the taxes imposed by deduction at source, for the taxable amounts in calendar year and at the end of which the termination will be notified;
b) for the other taxes imposed on income or gains made in the calendar year or accounting year and at the end of which the termination will be notified;
c) for the other taxes imposed on property and owned property to 01/01 of calendar year and at the end of which the termination will be notified;
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this Agreement.
DONE in Hanoi, on 10th February of 1993 in duplicate, in Vietnamese and French languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM MINISTER OF FINANCE Ho Te
FOR THE GOVERNMENT OF FRANCE MINISTER OF FINANCE Martin Malvy
PROTOCOL
When signing the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the French Republic to avoid double taxation and prevent tax evasion and contraband for taxes imposed on income and on the property, the persons who signed have agreed the following provisions which constitute a part of this Agreement.
1. With respect to Clause 1 of Article 4, automatically, the term “resident of a Contracting State” includes, when this State is French State, the companies have many persons and all other organizations have many persons and have place of management in France and their members must be levied on their income respectively in accordance with the law of France.
2. a) With respect to Article 10 and Article 11, if in an Agreement on avoidance of double taxation and prevention of tax evasion and contraband with a third State which is a member of the European Economic Community (CEE), Vietnam shall agree upon a tax rate at source lower than (including the tax rate of 0%) the tax rates mentioned in this Agreement, such tax rates shall automatically replace the tax rates mentioned in this Agreement and calculated from the effective date of that Agreement between Vietnam and the mentioned third State.
b) In the event that one or many Agreements on avoidance of double taxation are signed after 30/07/1992 between Vietnam and one or many States of the European Economic Community (CEE) imply one or many provisions which are like or the same as the ones specified in Article 24 of sample of tax Agreement of Organization for economic Co-operation and Development (OCDE), Vietnam shall accept a treatment in the most favorable manner by automatic application of one or many of such provisions to the citizens, enterprises or residents of France like the citizens, enterprises or residents of that member State.
3. The remuneration paid for technical services, including the analyses or researches with the scientific, geological or technical character, the industrial researches including the projects pertaining to the supervision or consultation services shall not be regarded as the royalty but the gains, as the case may be, apply according to the provisions of Article 7 or Article 13.
4. a) With respect to loan interest, in the event for the purpose of special relationship between the payer and the beneficiary or in the event of such relationship between this person or the other person and a third person, the total loan interest, especially when taking into account the interest and scale of loan thus this interest must be paid, exceeds the total interest agreed upon between the payer and the beneficiary in the absence of such relationship, the provisions of Article 20 shall only apply to the agreed amount. In this case, the excessive amount must be taxed in accordance with the law of each Contracting State while considering the other provisions of this Agreement.
b) Generally for any income or property, no Article in this Agreement shall prevent a Contracting State to apply its regulations of law to prevent or punish illegal tax evasion or contraband to the resident of that State.
5. With respect to Clause 2 of Article 22, automatically, the term “the sum of French taxes corresponding with such gains” is used to specify:
a) sum of relevant net gains multiplied by the tax rate actually applies to those gains. In this case, the taxes payables to such gains must be calculated by the rated tax;
b) sum of relevant net gains multiplied by the tax rate is drawn from the rate between the tax actually paid for the entire taxable net gains according to the French tax law with the sum of such gains in the event the taxes payable for such gains are calculated by the progressive tariff.
Similarly this interpretation also applies to the term " the sum of French taxes corresponding with such property "
6. No article in this Agreement prevents France to apply its regulations of law which permit the French resident companies, based on the requirements of such companies, to determine their taxable profits under the regime of whole gathering especially including the results of Vietnamese resident branches or permanent establishments situated in Vietnam. However, this regulation does not affect the law of Vietnam in identification and taxation of profits of the said branches and permanent establishments according to its law and any other provision of this Agreement.
7. It is obvious that the provisions in Article of the Agreement between the Government of the Socialist Republic of Vietnam and the Government of the French Republic on bilateral promotion and protection of investments signed on 26/05/1992 shall not apply in the field of taxation.
DONE in Hanoi, on 10th February of 1993 in duplicate, in Vietnamese and French languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM MINISTER OF FINANCE Ho Te
FOR THE GOVERNMENT OF FRANCE MINISTER OF FINANCE Martin Malvy
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà Pháp, Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam
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Hồ Tế, Martin Malvy
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10/02/1993
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01/07/1994
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE MINISTRY OF FINANCE
SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness
No. 05/TC/BH
Hanoi, January 2, 1993
DECISION
PROMULGATION OF THE SCHEDULE OF DISABILITY INSURANCE COVERAGE RATES APPLYING TO PERSONAL INSURANCE OPERATIONS
THE MINISTER OF FINANCE
- Pursuant to the Decree No. 155/HDBT dated 15-10-1988 of the Ministerial Council on definition of functions, duties and organizational structure of the Ministry of Finance;
- Pursuant to the Decision No. 45/QDTC dated 2-3-1989 of the Minister of Finance on introduction of the organizational and operational charter of Vietnam Insurance Incorporation;
For the purposes of providing the uniform method of insurance payment made in personal insurance operations;
After considering the request of the General Director of Vietnam Insurance Incorporation;
HEREBY DECIDES
Article 1: This Decision is enclosed herewith the schedule of disability insurance coverage rates applying to personal insurance operations.
Article 2: This Decision shall enter into force from the signature date. Any preexisting regulations relating to disability insurance payments that apply to personal insurance operations in contravention of this Decision shall be rendered null and void.
Article 3: The General Director of Vietnam Insurance Incorporation, the Chief of the Ministry of Finance’s Office, the Director of the Department of Financial Balancing – Finance, the Directors of the Finance Departments of centrally-affiliated cities and provinces, and Heads of relevant agencies, shall be responsible for enforcing this Decision./.
PP. THE MINISTER OF FINANCE THE DEPUTY MINISTER Pham Van Trong
SCHEDULE OF DISABILITY INSURANCE COVERAGE RATES
(Issued together with the Decision No. 05/TC-BH dated 2/01/1993 of the Ministry of Finance)
Scope of benefits
Insurance coverage rate
I – TOTAL DISABILITY
100%
1. Blindness or total loss of two eyes
100%
2. Incurable psychological disorder
100%
3. Total impairment of chewing and talking capacity
100%
4. Total loss or paralysis of two arms (from the shoulders or elbows) or two legs (from the crotch or knees)
100%
5. Loss of two hands or two feet, one arm and one foot, or one arm and one shank, or one hand and one shank, or one hand and one foot
100%
6. Loss of ability to work (complete paralysis, injuries that lead to immobilization or total permanent disability)
100%
7. Removal of a complete lung and a part of the other lung
100%
II – PARTIAL DISABILITY
A. UPPER LIMBS
8. Loss of one arm from the shoulder (shoulder disarticulation)
75 – 85%
9. Amputation of an arm below the shoulder
70 – 80%
10. Amputation of one arm at the elbow (elbow disarticulation)
65 – 75%
11. Loss of a complete hand or five fingers
60 – 70%
12. Loss of 4 fingers, except the thumb
40 – 50%
13. Loss of the thumb and index finger
35 – 45%
14. Loss of 3 fingers: 3 rd, 4 th and 5 th ones
30 – 35%
15. Loss of 1 thumb and 2 other fingers
35 – 40%
16. Loss of 1 thumb and 1 other finger
30 – 35%
17. Loss of 1 index finger and 2 other fingers
35 – 40%
18. Loss of 1 index finger and 1 middle finger
30 – 35%
19. Loss of one thumb and one metacarpal
25 – 30%
Loss of one thumb
Loss of the distal phalange
Loss of ½ of the distal phalange
20 – 25%
10 – 15%
07 – 10%
20. Loss of one index finger and one metacarpal
Loss of 1 index finger
Loss of 2 nd and 3 rd phalange
Loss of 3 rd phalange
20 – 25%
18 – 22%
10 – 12%
08 – 10%
21. Complete loss of 1 middle finger or ring finger (a whole metacarpal)
Loss of 1 middle finger or ring finger
Loss of 2 nd and 3 rd phalange
Loss of 3 rd phalange
18 – 22%
15 – 18%
08- 12%
04 – 07%
22. Loss of 1 little finger and metacarpal
Loss of a complete little finger
Loss of 2 nd and 3 rd phalange
Loss of 3 rd phalange
15 – 20%
10 – 15%
08 – 10%
04 – 07%
23. Stiff shoulder joint
24. Stiff elbow joint
25. Stiff wrist
25 – 35%
25 – 35%
25 – 35%
26. Fractured arm distraction or bone loss that shortens the limb by more than 3 cm and impedes the ability to turn the palm up and down or creates false joints
25 – 35%
27. Arm bone fracture at the anatomical neck, bad callus, limited movement of shoulder joints
28. Fracture of wrist bones
- Good callus, normal movement
- Bad callus, atrophy
29. Fracture of the radius and ulna
30. Fracture of either radius or ulna
31. False joint of both radius and ulna
35 – 45%
15 – 25%
25 – 30%
12 – 25%
10 – 20%
25 – 35%
32. False joint of either radius or ulna
33. Fracture of the lower extremity of the radius
34. Fracture of the styloid process of the radius or ulna
35. Fracture of wrist bones
36. Fracture of metacarpals (depending on the fracture level ranging from 1 to many metacarpals)
37. Fracture of collar bone: Good callus
Bad callus, stiff shoulder
Compression of axilarry nerve
38. Scapula fracture: - Fractured or missing main part of scapula
- Horizontal fracture
- Shoulder joint fracture
39. Fracture of finger bones (depending on fracture level ranging from one to many fingers)
15 – 20%
10 –18%
08 – 15%
10 – 18%
08 – 15%
08 – 12%
18 – 25%
30 – 35%
10 – 15%
17 – 22%
30 – 40%
03 – 12%
B. LOWER LIMBS
40. Loss of one leg from the crotch (hip disarticulation)
41. Amputation of one thigh:
1/3 upper
1/3 middle or below
42. Amputation of 1 leg below the knee (knee disarticulation)
43. Ankle disarticulation or loss of 1 foot
44. Loss of talus
45. Loss of calcaneus
46. Loss of part of the tibia, fibula that causes false joints
47. Partial loss of the fibula
48. Loss of ankles:
- Outer ankle
- Inner ankle
49. Loss of all 5 toes
50. Loss of 4 toes including the big toe
51. Loss of 4 toes excluding the big toe
52. Loss of 3 rd, 4 th and 5 th toe
53. Loss of 3 toes including 1 st, 2 nd and 3 rd toe
54. Loss of the big toe and 2 nd toe
55. Loss of 1 big toe
56. Loss of 1 toe excluding the big toe
57. Loss of 1 big toe phalanx
58. Hip stiffness
59. Knee joint stiffness
75 – 85%
70 – 80%
55 – 75%
60 – 70%
55 – 65%
35 – 40%
35 – 45%
35 – 45%
20 – 30%
10 – 15%
15 – 20%
45 – 55%
38 – 48%
35 – 45%
25 – 30%
30 – 35%
20 – 25%
15 – 20%
10 – 15%
08 – 12%
45 – 55%
30 – 40%
60. Loss of most of the patella and serious limitation to the ability to stretch the upper thigh
45 – 55%
61. Leg fracture distraction or loss of bone that leads to the limb shortening
- by 3 - 5 cm
- from 3 to 5 cm
62. Complete paralysis of lateral popliteal nerve
63. Complete paralysis of medial popliteal nerve
64. Fracture of thigh bone at 1/3 middle or below
- Good callus
- Bad callus, malunion, varus or valgus, atrophy
(In case of surgery, the maximum amount of insurance coverage shall be paid)
65. Fracture of the upper 1/3 or femur neck (in case of surgery, the maximum amount of insurance coverage shall be paid)
- Good callus, straight axis
- Bad callus, valgus, walking with pain, atrophy
66. False joint of the femur neck
67. Fracture of the fibula and tibia
68. Fracture of the tibia
69. Fracture of the tibial plateau
70. Fracture of the fibula
71. Patellar tendon rupture
72. Fracture of the patella (in case of surgery, the maximum amount of insurance coverage shall be paid)
73. Fracture of the patella, knee stiffness, or quadriceps atrophy (depending on disability levels)
74. Achilles tendon rupture (stitched)
75. Fracture of metacarpals (depending on the level ranging from 1 to many metacarpals)
76. Fracture of the calcaneus
77. Fracture of the navicular
78. Fracture of toe bones (depending on the level ranging from 1 to many phalanges)
79. Fracture of ramus superior ossis pubis
80. Fracture of the ischium
81. Fracture of 1 ilium
82. Fracture of 2 ilium, pelvic deformity (depending on the level of impact on reproduction)
40 – 45%
35 – 40%
35 – 45%
25 – 35%
20 – 30%
30 – 40%
25 – 35%
35 – 45%
45 – 55%
20 – 30%
15 – 22%
15 – 25%
10 – 20%
15 – 25%
10 –20%
25 – 30%
15 – 20%
07 – 12%
15 – 25%
15 – 22%
04 – 12%
25 – 32%
25 – 30%
20 – 30%
40 – 60%
83. Fracture of the sacrum:
Without a sphincter disorder.
With a sphincter disorder.
10 – 15%
25 – 35%
C. SPINE
84. Removal of posterior vertebral arch:
of 1 vertebra
of 2 – 3 vertebrae or more
85. Compression fracture of 1 vertebra (without paralysis of the spinal cord)
86. Compression fracture of more than 2 vertebrae or more (without paralysis of the spinal cord)
87. Fracture of the spinous process or transverse process
of 1 vertebra
of 2 – 3 vertebrae
35 – 40%
45 – 60%
30 – 40%
45 – 60%
10 – 17%
25 – 45%
D. SKULL AND BRAIN
88. Skull defect (no sign of psychological and psychiatric disorder)
+ Diameter < 6 cm
+ Diameter from 6 - 10 cm
+ Diameter > 10 cm
89. Language disorder due to brain injuries
+ Idioglossia or spasmophemia that affect communication
Mutism due to injury to the Broca’s area
+ Loss of ability to use written language (asphasia due to injury to the Wernicke’s area)
25 – 40%
40 – 60%
50 – 70%
30 – 40%
60 – 70%
55 – 70%
90. Total scalping (or partial scalping according to ratios)
91. Open head injuries:
Cracked or broken skull
Depressed skull
Deep penetration of many pieces of fractured bones into the brain
92. Closed head injury
+ Fracture of calvaria (usual crack or depressed fracture)
+ Bone fracture that spreads to the basilar skull without paralysis of cranial nerve
+ Bone fracture that spreads to the basilar skull with paralysis of cranial nerve
93. Brain injury
+ Cerebral concussion
+ Cerebral edema
+ Cerebral contusion, compression
+ Subarachnoid hemorrhage
+ Intracranial haematoma (epidural, subdural and intracerebral)
45 – 55%
40 – 50%
30 – 40%
50 – 60%
20 –30%
30 – 40%
40 – 50%
08 – 15%
40 – 50%
50 – 60%
40 – 50%
30 – 40%
E. CHEST
94. Removal of 1 – 2 ribs
95. Removal of 3 ribs or more
96. Removal of each rib section
97. Fracture of 1 – 2 ribs
98. Fracture of 3 ribs or more
99. Mere fracture of the sternum (cardiovascular and refractory functions are normal)
100. Fissure of the sternum
101. Complete removal of one lung
102. Removal of multiple lobes of 2 lungs, DTS is reduced by over 50%
15 – 20%
25 – 35%
8 – 10%
7 – 12%
15 – 25%
15 – 20%
10 – 15%
70 – 80%
65 – 75%
103. Removal of multiple lobes of a lung
104. Removal of a lung lobe
105. Pleural effusion, pneumothorax, hemothorax (paracentesis only)
106. Pneumothorax, hemothorax (drainage)
107. Heart valve and septum defects due to injuries (without a heart failure)
108. Pericardial sewing:
Bad surgery result
Good surgery result
50 – 60%
35 – 45%
04 – 10%
20 – 30%
50 – 60%
60 – 70%
35 – 45%
G. ABDOMEN
109. Complete removal of the stomach
110. Segmental resection of the stomach
111. Removal of most of the small intestine (less than 1 m remaining)
112. Segmental resection of the small intestine
113. Complete removal of the large intestine
114. Segmental resection of the large intestine
115. Mere removal of the right liver
116. Mere removal of the left liver
117. Removal of liver lobes, depending on the position, number, and surgery results
118. Removal of the gall bladder
119. Removal of the spleen
120. Removal of the tail of pancreas or spleen
121. Gastric perforation sewing
122. Small intestine perforation sewing (1 or multiple perforations)
123. Large intestine perforation sewing
124. Liver contusion, liver sewing
125. Splenic capsule sewing
126. Pancreas sewing
75 – 85%
50 – 60%
75 – 85%
40 – 50%
75 – 85%
50 – 60%
70 – 80%
60 – 70%
40 – 60%
45 – 55%
40 – 50%
60 – 70%
25 – 35%
30 – 45%
30 – 40%
35 – 45%
25 – 35%
30 – 35%
H. UNIRARY AND REPRODUCTIVE ORGANS
127. Removal of 1 kidney, the remaining kidney is functional
128. Removal of 1 kidney, the remaining kidney is damaged or sick
129. Segmental resection of the left or right kidney
130. Kidney injury (depending on the seriousness and the number of kidneys injured)
Slight (not special treatment is required, shorter than 5 days of monitoring)
Medium (special medication is required, longer than 5 days of monitoring)
Serious (contusion, surgical intervention is required)
131. Segmental resection of the bladder
132. Permanent bladder stoma surgery
133. Bladder perforation sewing
50 – 60%
70 – 80%
30 – 40%
04 – 08%
10 – 15%
47 – 55%
27 – 35%
70 – 80%
30 – 35%
134. Loss of the penis and 2 testicles of:
A woman under 55 years of age without children
A women under 55 years of age with children
A women over 55 years of age
135. Removal of the womb and one ovary of
Women under 45 years of age without children
Women under 45 years of age with children
Women over 45 years of age
136. Removal of 1 breast of women under 45 years of age: 1 side
2 sides
Women over 45 years of age
1 side
2 sides
70 – 80%
55 – 65%
35 – 40%
60 – 70%
30 – 40%
25 – 30%
20 – 30%
45 – 55%
15 – 20%
30 – 40%
I. EYE
137. Loss or total loss of sight of 1 eye
Failure to implant an artificial eye
Possibility of implantation of an artificial eye
138. The 1/10 vision of one eye
139. The 2/10 – 4/10 vision of one eye
140. The 5/10 – 7/10 vision of one eye
141. Loss or total loss of sight of 1 eye, but the other eye is already lost or blind before the accident
55 – 65%
50 – 60%
30 – 45%
12 – 20%
07 – 15%
80 – 90%
K. EAR – NOSE - THROAT
142. Deafness of 2 ears: unrecoverable
Serious (able to hear when being screamed at)
Medium (able to hear loud voices at 1 – 2 m)
Slight (able to hear loud voices at 2 – 4 m)
143. Deafness of 1 ear: unrecoverable
Medium
Slight
144. Loss of 2 pinna
145. Loss of 1 pinna
146. Shriveled pinnae, ear canal stenosis
147. Loss of nose, nose deformity
148. Esophageal stricture causing swallowing difficulties
75 – 85%
60 – 70%
35 – 45%
15 – 25%
30 – 40%
15 – 20%
8 – 15%
20 – 40%
10 – 25%
20 – 25%
18 – 40%
20 – 40%
L. TOOTH – JAW – FACE
149. Lost of part of the upper jawbone and part of the lower jawbone from the ramus and under:
at a different side
at the same side
150. Total loss of the upper jawbone or lower jawbone
151. Loss of part of the upper jawbone or part of the lower jawbone (1/3 – 1/2 of the jawbone is lost) under the ramus
80 – 90%
70 – 80%
70 – 80%
35 – 45%
152. Fracture of the upper jawbone and the lower jawbone, mal union, dislocation of temporomandibular joint which cause swallowing and chewing difficulties
153. Fracture of the zygomatic bone, which causes slight the temporomandibular joint disorder and chewing difficulties
30 – 35%
15 – 25%
154. Artificial temporomandibular joint due to nonunion or bone defects
155. Loss of teeth: more than 08 teeth without possibility of implantation of false teeth
From 5 – 7 teeth
From 3 – 4 teeth
From 1 – 2 teeth
156. Loss of 3/4 of the tongue without losing the root (from the V line outwards)
157. Loss of 2/3 of the tongue from the tip
158. Loss of 1/3 of the tongue that causes pronunciation difficulties
159. Loss of less than 1/3 of the tongue that causes pronunciation difficulties
20 – 25%
30 – 40%
15 – 25%
8 – 12%
3 -6 %
75 – 85%
50 – 60%
15 – 25%
10 – 15%
M. SOFT TISSUE INJURIES, BURNS
160. Soft tissue injuries include skin scratch, mucous membrane scratch, sprain, luxation, etc. which causes no impact on muscular energy (depending on the seriousness level such as serious, slight, much or less)
161. Soft tissue injuries that cause pain, numbness, convulsive movements (depending on the extent and seriousness), affect tendons, muscles, major blood vessels, and nerves
162. Chest and abdominal soft tissue injuries that affect respiration
163. Soft tissue injuries that leave sclerosis and cause difficulties in eating, chewing, and neck movement
164. Soft tissue injuries that cause large openings around the mouth cavity, lip and cheek injuries that seriously affect eating and drinking
165. Loss of part of the palate that connect the nose and the mouth
166. Superficial burn (first-degree, second-degree)
Less than 5% of skin area
From 5-15% and more than 15% of skin area
167. Deep burn (third-degree, fourth-degree, fifth-degree)
Less than 5% of skin area
5-15% of skin area
More than 15% of skin area
02 – 12%
12 – 25%
35 – 45%
40 – 60%
50 – 60%
20- 30%
3 – 7%
10 – 15%
15 – 25%
20 – 35%
35 – 60%
60 – 80%
PRINCIPLES OF INSURANCE CLAIM CONSIDERATION
Insurance claim consideration according to this schedule shall be based on insured patients’ medical treatment invoices and the following regulations:
1- The complete incapacity of each organ or permanent limb damage shall be considered as loss of such organ or loss of limbs.
When any disability is not specified in this schedule, claims on such disability shall be paid based on the comparison of its seriousness with other disability cases defined in this schedule.
3- Commonly treated injuries and those without infection shall be eligible for insurance payments in proportion to the lowest level of insurance payment in the scale of insurance coverage rates applicable to this case.
4- Complicatedly treated injuries and those with infection or with any sequela after being treated shall be based on their seriousness to be eligible for insurance payments which are gradually increased to the maximum level of insurance payment in the scale of insurance payment coverage applicable to this case.
5- With respect to multiple injuries, insurance payments shall be made to single injury but the total of insurance payment to the insured is not allowed to exceed the insurance cover agreed in an insurance policy. If multiple injuries occur at the same limb, the total sum paid to such injuries is not allowed to exceed the ratio of such limb loss.
6- With respect to injuries subject to re-operation and breaking of callus for remodeling, 50% of the minimum level of insurance payment in the scale of insurance coverage rate applied to such case shall be additionally paid but the total sum of insurance payment is not allowed to exceed the insurance cover agreed in an insurance policy.
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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05/TC/BH
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Quyết định
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Bộ Tài chính
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Phạm Văn Trọng
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02/01/1993
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02/01/1993
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
THE GOVERNMENT OF THE KINGDOM OF THAILAND AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Kingdom of Thailand and the Government of the Socialist Republic of Vietnam,
Desiring to conclude an Agreement for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on income,
Have agreed as follows:
ARTICLE 1
PERSONAL SCOPE
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
ARTICLE 2
TAXES COVERED
1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied.
2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises as well as taxes on capital appreciation.
3. The existing taxes to which the Agreement shall apply are:
(a) In Thailand:
(1) the income tax;
(2) the petroleum income tax; (hereinafter referred to as "Thai tax");
(b) In Vietnam:
(1) the personal income tax;
(2) the profit tax;
(3) the profit remittance tax;
(4) the foreign contractor tax; and
(5) the petroleum foreign sub-contractor tax; (hereinafter referred to as "Vietnamese tax").
4. The Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of the existing taxes. The compete authorities of the Contracting States shall notify each other of important changes which have been made in their respective taxation laws.
ARTICLE 3
GENERAL DEFINITIONS
1. For the purposes of this Agreement, unless the context otherwise requires:
(a) The term "Thailand" means the Kingdom of Thailand and includes any area adjacent to the territorial waters of the Kingdom of Thailand which by Thai legislation, and in accordance with the international law, falls under the jurisdiction of the Kingdom of Thailand;
(b) The term "Vietnam" means the Socialist Republic of Vietnam; when used in a geographical sense, it means all its national territory, including its territorial sea and any area beyond its territorial sea, within which Vietnam, by Vietnamese legislation and in accordance with international law, has sovereign rights of exploration for and exploitation of natural resources of the seabed and its subsoil and superjacent water mass;
(c) The terms "a Contracting State" and "the other Contracting State" mean Thailand or Vietnam as the context requires;
(d) The term “person” includes an individual, a company and any body of persons as well as any entity treated as a taxable unit under the taxation laws in force in either Contracting State;
(e) The term "company" means any body corporate or any entity which is treated as a body corporate for tax purposes;
(f) The terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and a enterprise carried on by a resident of the other Contracting State;
(g) The term "national" means:
(1) any individual possessing the nationality of a Contracting State;
(2) any legal person, partnership, association and any other entity deriving its status as such from the laws in force in a Contracting State;
(h) The term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State; and
(i) The term "competent authority" means, in the case of Thailand, the Minister of Finance or his authorized representative, and in the case of Vietnam, the Minister of Finance or his authorized representative.
2. As regards the application of the Agreement by a Contracting State, any term not defined there shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the Agreement applies.
ARTICLE 4
RESIDENT
1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of incorporation, place of management or any other criterion of a similar nature. But this term does not include any person Who is liable to tax in that State in respect only of income from sources in that State.
2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
(a) He shall be deemed to be a resident of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident of the State with which his personal and economic relations are closer (centre of vital interests);
(b) If the Contracting State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident of the State in which he has an habitual abode;
(c) If he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident of the State of which he is a national;
(d) If he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the State where it was incorporated.
ARTICLE 5
PERMANENT ESTABLISHMENT
1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
(a) A place of management;
(b) A branch;
(c) An office;
(d) A factory;
(e) A workshop;
(f) A mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) A building site, a construction installation or assembly project or supervisory activities in connection therewith, where such site, project or activities continue for a period of more than six months.
3. Notwithstanding the preceding provisions of this Article, the term “permanent establishment” shall be deemed not to include:
(a) The use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) The maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) The maintenance of a goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) The maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise;
e) The maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research or for similar activities which have apreparatory or auxiliary character, for the enterprise;
(f) The maintenance of a fixed place of business solely for any combination of activities, mentioned in subparagraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
4. Notwithstanding the provisions of paragraphs 1 and 2, Where a person-other than an agent of an independent status to whom paragraph 5 applies-is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 3 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
5. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of independent status, provided that such persons are acting in the ordinary course of their business.
6. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (Whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
ARTICLE 6
INCOME FROM IMMOVABLE PROPERTY
1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources, ships, boats and aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.
ARTICLE 7
BUSINESS PROFITS
1. The income of profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the income or profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the income or profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of a certain percentage of the gross receipt of the enterprise or of the permanent establishment or on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such a method as may be customary; the method adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
5. No income or profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
6. For the purposes of the preceding paragraphs, the income or profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
7. Where income or profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
ARTICLE 8
SHIPPING AND AIR TRANSPORT
1. Income or profits derived by an enterprise of a Contracting State from the operation of aircraft in international traffic shall be taxable only in that Contracting State.
2. Income or profits derived by an enterprise of a Contracting State from the operation of ships in international traffic may be taxed in the other Contracting State, but the tax imposed in that other State shall be reduced by an amount equal to 50 percent thereof.
3. The provisions of paragraphs 1 and 2 shall also apply to income or profits from the participation in a pool, a joint business or an international operating agency.
ARTICLE 9
ASSOCIATED ENTERPRISES
Where
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprise, then any income or profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the income or profits of that enterprise and taxed accordingly.
ARTICLE 10
DIVIDENDS
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed 15 percent of the gross amount of the dividends. This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3. The term "dividends" as used in this Article means income from shares, mining shares, founders shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the State of which the company making the distribution is a resident.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Where a company which is a resident of a Contracting State derives income or profits from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of income or profits arising in such other State. Nothing in this paragraph shall be construed as preventing a Contracting State from imposing income tax, according to the laws of that State, on the disposal of profits made by a permanent establishment situated therein.
ARTICLE 11
INTEREST
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax charged shall not exceed:
(a) 10 percent of the gross amount of the interest if it is received by any financial institution (including an insurance company);
(b) 15 percent of the gross amount of the interest in other cases.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and paid to the Government of the other Contracting State shall be exempt from tax in the first mentioned Contracting State.
For the purposes of this paragraph, the term “Government”
(a) in the case of Thailand, means the Government of the Kingdom of Thailand and shall include:
(i) the Bank of Thailand;
(ii) the local authorities; and
(iii) such institutions, the capital of which is wholly owned by the Government of the Kingdom of Thailand or any local authorities as may be agreed from time to time between the competent authorities of the two Contracting States.
(b) in the case of Vietnam, means the Government of the Socialist Republic of Vietnam and shall include:
(i) the State Bank of Vietnam;
(ii) the local authorities; and
(iii) such institutions, the capital of which is wholly owned by the Government of the Socialist Republic of Vietnam or any local authorities as may be agreed from time to time between the competent authorities of the two Contracting State;
4. The term "interest" as used in this Article means income, from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income assimilated to income from money lent by the taxations law of Contracting State in which the income arises. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt- claim in respect of which the interest is paid is effectively connected with such permanent establishment of fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 12
ROYALTIES
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the recipient is the beneficial owner of the royalties, the tax so charged shall not exceed 15 percent of the gross amount of the royalties.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial, or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such cases the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision, a local authority or a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 13
CAPITAL GAINS
1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone with the whole enterprise) or of such a fixed base, may be taxed in that other State.
3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
4. Gains from the alienation of any property, other than those referred to in paragraphs 1, 2 and 3 shall be taxable only in the Contracting State of which the alienator is a resident. Nothing in this paragraph shall prevent either Contracting State from taxing the gains or income from the sale or transfer of shares or other securities.
ARTICLE 14
INDEPENDENT PERSONAL SERVICES
1. Income derived by a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities, for a period or periods amounting to or exceeding in the aggregate 183 days in the fiscal year concerned; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other State.
2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15
DEPENDENT PERSONAL SERVICES
1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the fiscal year concerned, and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic, by an enterprise of a Contracting State shall be taxable only in that State.
ARTICLE 16
DIRECTORS'FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.
ARTICLE 17
ARTISTES AND ATHLETES
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as an athlete, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of personal activities exercised by an entertainer or an athlete in his capacity as such accrues not to the entertainer or athlete himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or athlete are exercised.
3. The provisions of paragraphs 1 and 2 shall not apply to remuneration or profits, salaries, wages and other similar income derived from activities performed in a Contracting State by an entertainer or an athlete if the visit to that Contracting State is substantially supported by public funds of the other Contracting State.
ARTICLE 18
PENSIONS
Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration paid to a resident of a Contracting State in consideration of past employment shall be taxable only in that State.
ARTICLE 19
GOVERNMENTAL FUNCTION
1.
(a) Remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(1) is a national of that State; or
(2) did not become a resident of that State solely for the purpose of rendering the services.
2.
(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only that State.
(b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
3. The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a local authority thereof.
ARTICLE 20
STUDENTS
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
ARTICLE 21
PROFESSORS, TEACHERS AND RESEARCHERS
1. An individual who is a resident of a Contracting State immediately before making a visit to the other Contracting State, and who, at the invitation of any university, college, school or other similar educational which is recognized by the competent authority in that other Contracting State, visits that other Contracting State for a period not exceeding two years solely for the purpose of teaching or research or both at such educational institution shall be exempt from tax in that other Contracting State on any remuneration for such teaching or research.
2. This Article shall only apply to income from research if such research is undertaken by the individual for the public interest and primarily for the benefit of some other private person or persons.
ARTICLE 22
OTHER INCOME
Items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Agreement may be taxed in the State where the income arises.
ARTICLE 23
METHODS FOR ELIMINATION OF DOUBLE TAXATION
1. The laws in force in either of the Contracting States shall Continue to govern the taxation of income in the respective Contracting States except, when an express provision to the contrary is made in this Agreement. When income is subject to tax in both Contracting States, relief from double taxation shall begiven in accordance with the following paragraphs of this Article.
2.
(a) Where a resident of Vietnam derives income which, in accordance with the provisions of this Agreement, may be taxed in Thailand, Vietnam shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Thailand. Such deduction shall not, however, exceed that part of the Vietnamese tax, as computed before the deduction is given, which is attributable to that income.
(b) For the purposes of subparagraph (a) above, the term "tax paid in Thailand" shall be deemed to include the amount of Thai tax which, under the laws of Thailand and in accordance with this Agreement, would have been paid had the Thai tax not been exempted or reduced in accordance with:
(i) the provisions of the sections 31, 33, 34, 35(2), 35(3), 35(4), or 3(4) of the Investment Promotion Act, B.E.2520 (1977), and connected regulations, as effective on the date of signature of this Agreement or as modified only in minor respects after the date of signature of this Agreement; or
(ii) any other special incentive measures designed to promote economic development in Thailand which may be introduced hereafter in modification of, or in addition to, the existing laws, provided that an agreement is made between the two competent authorities.
3.
(a) Where a resident of Thailand derives income which, in accordance with the provisions of this Agreement, may be taxed in Vietnam, Thailand shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Vietnam. Such deduction shall not, however, exceed that part of the Thai tax, as computed before the deduction is given, which is attributable to that income.
(b) For the purposes of subparagraph (a) above, the term "tax paid in Vietnam" shall be deemed to include the amount of Vietnamese tax which, under the laws of Vietnam and in accordance with this Agreement, would have been paid had the Vietnamese tax not been exempted or reduced in accordance with:
(i) the provisions of the sections 27, 28, 32 or 3 of the Law on Foreign Investment in Vietnam (1987) and connected regulations, as effective on the date of signature of this Agreement or as modified only in minor respects after the date of signature of this Agreement; or
(ii) any other special incentive measures designed to promote economic development in Vietnam which may be introduced hereafter in modification of, or in addition to, the existing laws, provided that an agreement is made between the two competent authorities.
ARTICLE 24
MUTUAL AGREEMENT PROCEDURE
1. Where a person who is resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic laws of those States, present his case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
2. The competent authority shall endeavor, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Agreement.
3. The competent authorities of the Contracting States shall endeavor to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purposes of reaching an agreement in the sense of the preceding paragraphs.
ARTICLE 25
EXCHANGE OF LNFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the Agreement. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
ARTICLE 26
DIPLOMATIC AGENTS AND CONSULAR OFFICERS
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.
ARTICLE 27
ENTRY INTO FORCE
1. This Agreement shall be ratified and the instruments of ratification shall be exchanged at Hanoi as soon as possible.
2. The Agreement shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect:
(a) in respect of taxes withheld at source, on amounts paid or remitted on or after the first day of January next following that in which the exchange of instruments of ratification takes place;
(b) in respect of other taxes on income, for taxable years or accounting periods beginning on or after first day of January next following that in which the exchange of instruments of ratification takes place.
ARTICLE 28
TERMINATION
This Agreement shall remain in force indefinitely, but either of the Contracting States may, on or before 30th of June in any calendar year beginning after the expiration of a period of five years from the date of its entry into force, give to the other Contracting State, through diplomatic channels, written notice of termination.
In such event the Agreement shall cease to have effect:
(a) in respect of taxes withheld at source, on amounts paid or remitted on or after the first day of January next following that in which the notice is given;
(b) in respect of other taxes on income, for taxable years or accounting periods beginning on or after the first day of January next following that in which the notice is given.
IN WITNESS WHEREOF, The undersinged, being duly authorized thereto by their respective Governments, have signed this Agreement.
Done in duplicate at Hanoi on this 23rd day of December, one thousand nine hundred and ninety two Year of the Christian Era, each in the Thai, Vietnamese and English languages, all texts being equally authoritative, except in the case of doubt when the English text shall prevail.
FOR THE GOVERNMENT OF THE KINGDOM OF THAILAND Prasong Soonsiri (H.E. Sqn.Ldr.Prasong Soonsiri) Minister of Foreign Affairs
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM Ho Te (H.E.Mr.Ho Te) Minister of Finance
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Vương quốc Thái Lan
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Hồ Tế, Prasong Soonsiri
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23/12/1992
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29/12/1992
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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PRESIDENT OF THE COUNCIL OF MINISTERS
SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom – Happiness
No. 327-CT
Hanoi, September 15, 1992
DECISION
MASTER GUIDELINES AND POLICIES TO UTILIZE UNOCCUPIED LAND, "BARREN" HILLY AREAS, FORESTS, DENUDED, BEACHES AND WATERFRONT
PRESIDENT OF THE COUNCIL OF MINISTERS
With reference to the laws to form the Council of Ministers, dated July 4, 1981. The plan for the next 10-15 years lays the groundwork to restore denuded or "barren’’ hills and mountains, to protect the environment and forests and to exploit the potential of unoccupied land in the hilly regions, denuded beaches and waterfronts in order to increase the production of raw materials and commodities for industries. It will also lay the groundwork to divide the land, settle the population, link social and economic needs, as well as stabilize and raise the material and spiritual standard of living in the new economic zones, in order to stimulate the residents to increase their production efforts and consolidate the national security.
HEREBY DECIDED:
I. MASTER GUIDELINES
Article 1
According to the strategy for economic and social development to the year 2000, all government levels and branches must mobilize their efforts and financial resources to participate in the projects using the unoccupied lands, denuded hills and mountains, forests, beaches and waterfronts. The provinces in which these are found must develop projects to fully utilize the land within their territories; s the others must mobilize their inhabitants to participate in the projects in the neighboring provinces.
Article 2
Projects must correspond to the investment capacity of the people and must be related to dividing the land and settling the population in the frontiers. These must have priority, along with those that can have an impact in the near future. Projects for existing forests and farmlands, including those of the military, must be of a scope similar to that of the undeveloped areas. The forest, livestock and agriculture projects must include a production structure and be closely linked to the forest, agriculture, industrial and service sectors, as well as to commodity production, the processing industries and domestic and external markets. Further, it is necessary to increase the area of protected and reserved forests and head watersheds, and to clearly define where exploitation of lumber, firewood, or other forest products is prohibited or permitted.
Article 3
Households are considered the basic production units; state enterprises or collective economic units are supports on which to build; the "garden economy" must be developed for households. Close links must be made between households and the community, as well as between collective and state-run enterprises so as to expand production, protect the interests of each household; the Government and collective units must carry out their obligations; economic development must be linked to expanding social welfare; national defense and security must be ensured; and rural areas must be developed.
Article 4
It is important to stabilize villages where the land has been divided and the population settled as well as to undertake this process where it has not yet occurred. Where the populations are still nomadic and burn and destroy the forests for cultivation, they must be encouraged to develop farming settlements, plant trees, raise cash and food crops and livestock.
Article 5
The design and implementation of projects that focus on production should incorporate technical advances with manufacturing industries, consumption (of the products manufactured) and environmental protection.
II. POLICIES
A.LAND AND FORESTS; POLICY TO HAND OVER THE LAND AND FOREST
Article 6
Afforestation schemes: These are designed to preserve and exploit (for production) the hilly areas, mountains and beaches, and protect, care for and replant forests of all types. Each household (including those already settled) will be given a certain area of land/forest to replant, protect and tend. This will occur according to priority orders, on the funding available for land, on the capacity of each household to work the land, on local living conditions (including those of newly settled families), on the investment capacity of the State, and on the labor and capital available from the economic entities. The total area for each project is 5, 000-10, 000 hectares, depending on the type of project envisioned, and will be equal to a commune or village in the highlands, in order to form the basic administrative, economic, social and national defense unit that would be suited to the investment capability of the Government and people.
With regard to projects to extract resin from pine forests (both from forest and industrial trees), each should be 3, 500 hectares. Each household will be given a certain area of land (according to its capacity to work it and the availability of investment capital) to replant, manage, protect, and prepare for productive use.
In addition to these areas, each household (according to its labor potential) will be given additional arable land on which to plant short and long-tern industrial crops, as well as food crops, out of which each household is allowed to farm up to 5, 000m2 for its own use and a piece of pasture land for breeding purposes.
Article 7
With regard to the projects to plant industrial crops such as rubber, mulberry (for silk), and fruit trees, as well as coffee, tea, sugar cane and cotton, the size of each project will be based on the size of the new commune. Each household will be given areas to plant the crops (mentioned above), the size of which will depend on its capabilities and the availability of investment capital. Households will have the use of these areas for a long period and can appropriate 3000m2 for their own agricultural use.
In the immediate future, projects of this kind should be based on agro-forestry services directed by the State. In unoccupied barren, land, there is potential to expand such projects, but they should first be carefully formulated and prepared.
Article 8
Within the livestock breeding projects developed at the commune level, each household will be given land to plant fodder or to raise animals. At the same time, each household will be given land on which to develop short- and long-term industrial crops, food crops and to cultivate a garden.
Article 9
For projects involving the use of barren beaches and those devoted to fish farming in areas of about 700 hectares (which could hold a commune), each household is given some land to raise shrimp, crabs and seaweed and 700m2 to cultivate. The State will invest in and assist the building of infrastructure, and will be reimbursed in discounted installments. Each household will finance the infrastructure for the fish farming through its savings or with bank loans. The investment needed to reclaim small beaches and waterfronts of less than 700 hectares will come from the local authorities or be given to households.
B. INVESTMENT POLICY
Article 10
The investment capital provided by the Government to develop vacant beaches and hilly areas (for afforestation, farming, human settlements and development of new economic zones) is from the following sources:
a. The Government budget,
b. Forest resource taxes, foreign aid and loans, and private investment from entities and individuals.
In particular, the forest resource tax will be targeted for investment in forestry programs. Of the total funds provided, 60% will be spent for the construction of infrastructure, for scientific and technical facilities, for public welfare services, for afforestation, for the planting of the reserve and special use forests, for the national genetic gardens, for resettlement of original residents, and for the first six months after land clearing. This capital will be directly invested with the project recipients and need not be reimbursed. The remaining 40% will be loaned to households without interest. Households will be expected to begin repaying the loans when the items are produced; terms of the loans will be defined according to the type of crops being produced.
Households entering new economic zones will be allowed to transfer the rights to the cultivated land and the residences being left behind in order to accumulate more capital to invest in the new locale.
The works of the new projects will not be obligated to keep aside 10% of the investment capital (for use by Government). However Ministries managing the projects will be allowed to take 5%-6% of the total investment capital to use for extension services, technology transfers and management efforts.
Article 11
The Government strongly encourages the development of commercial businesses, stockholding companies, corporations and private companies including joint ventures between companies or individuals and foreign entities, to invest in agricultural cultivation and livestock breeding in newly developed lands. These economic units will use undeveloped lands, hilly areas, beaches and waterfronts in a manner that is suitable to the land in each area and the investment capacity of each business (whether plantations, farms, etc. ).
III. ORGANIZING, CARRYING OUT:
Article 12
From now until the year 2000, the Government has reserved a certain amount of capital to be invested each year for a program to plant and reforest the unoccupied coastal land, hilly areas and mountains. The program will begin in 1993, so as to actively prepare for 1994. SPC will determine in the near future the investment level for this program and will submit it to the Council of Ministers and National Assembly by the end of 1992.
Article 13
The Ministry of Labor and the Ministry of Social Affairs are assigned the task of studying and making an early report to the President of the COM on the subsidy policies for transporting the households to be moved, temporary lodging, food and the cost of clearing the land in the first six months, to encourage the process (moving the households) and build the new economic zone.
The policy to cut or exempt taxes must be carried out according to existing laws. The Ministry of Finance will prepare the necessary amendments and additions to the draft version of the Agricultural Tax Laws to be submitted to the Council of Ministers and the Congress.
Article 14
Scientific and technical cadres, as well as managerial cadres who execute the projects, extension services and technology transfers will be given incentive salaries, especially if located in the highlands. If the projects are effective, they will be awarded bonuses. The Ministry of Labor and the Ministry of Social Welfare are mandated to meet with other ministries to report to the Chairman of the Council of Ministers this matter.
Article 15
The primary ministries, in conjunction with the related ministries and agencies, must complete by the end of January, 1993 the organization plan up to the year 2000 for the agricultural, forest and maritime programs that will be the basis of the development plan of the projects described above. These ministries will also directly assist the provinces, districts and forest and farm camps to develop a number of pilot projects related to agriculture and forests by the end of 1992, so as to be ready to invest in 1993.
The projects described above must be considered carefully and be economic. But projects with an official plan and those that entail simple repairs under the technical cadres approval authority need not be designed again.
Article 16
The Ministries of Agriculture, Forestry and Aquatic Products, along with the Provincial People’s Committees and Central Cities’ People’s Committees should select the project directors and managers and transfer some existing agriculture and forest camps to the nationalized businesses based on Decree No. 388-HDBT of the Council of Ministers. This task must be completed in the first quarter of 1993 so it can be used as a guide for the family units’ production efforts.
Article 17
The following authorities have the responsibility to examine the projects.
- The chairman of the Council of Ministers will evaluate and approve large-scale projects in many provinces.
- Ministers of authorized ministries will evaluate and approve projects related to their ministries, and the projects to raise the marine products in the areas of over 700 hectares. The chairman of the Provincial People’s Committee will be responsible for examining the important aspects of the projects.
- The chairman of the People’s Committee of Provinces and Cities that belong to the central authority will be responsible for approving the project (in that province) and the projects related to the existing agricultural and forest camps which are under the provincial management. The chairman will also assume the management of all projects to be carried out within the province.
- Two national science centers and the State Science Committee are responsible for inspecting the details of the projects that relate to science.
Article 18
The State Planning Committee (SPC) will coordinate with the Ministry of Finance to examine the projects that need to be approved by the president of the Council of Ministers and to inspect the important aspects of some projects to be examined by the ministries and the People’s Committee of provinces and cities. SPC will put together all policies and investment plans of the projects for 1993 to be submitted to the COM. It will also prepare the plan for 1994. Once the plans are approved, the responsible ministries and localities will distribute the funds for the projects. The Ministry of Finance will inform the treasury to issue the funds directly to the project managers and to provide loans to the project managers and households, based on the plan for each project.
Article 19
In order to meet the needs of the projects, The Ministry of Labor, Veterans and Social Affairs is responsible for developing the policy to move workers and the population, for the policy with regard to the cadre and for the policy to manage and distribute the investment capital, in order to meet the needs of the projects.
Article 20
The ministries and Government committees that are related to the projects are responsible for selecting the expert cadres to undertake the projects, to promulgate (on time) the policies and guidance and give orders to agencies and those who work under them.
The Comrade Special Correspondent to the Council of Ministers is responsible for helping the Council and the President coordinate the effort between the branches and localities to inspect, direct and suggest the measures to carry out this resolution.
PRESIDENT OF THE COUNCIL OF MINISTERS Vo Van Kiet
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327-CT
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Quyết định
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Chủ tịch Hội đồng Bộ trưởng
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Võ Văn Kiệt
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15/09/1992
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15/09/1992
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of Australia and the Government of the Socialist Republic of Vietnam
Desiring to conclude and Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income Have agreed as follows :
Article 1. Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
Article 2. Taxes Covered
1. The existing taxes to which this Agreement shall apply are :
(a) in Australia the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Vietnam
(i) the income tax; (ii) the profit tax; and (iii) the withholding tax.
2. This Agreement shall also apply to any identical or substantially similar taxes on income, profits or gains which are imposed under the federal law of Australia or the law of Vietnam after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting State shall notify each other of any substantial changes which have been made in the laws of their respective State relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
Article 3. General Definitions
1. In this Agreement, unless the context otherwise requires :
(a) the term "Australia", when used in a geographical sense, excludes all external territories other than:
(i) the Territory of Norfolk Island;
(ii) the Territory of Christmas Island;
(iii) the Territory of Cocos (keeling) Island;
(iv) the Territory of Ashmore and Cartier Island;
(v) the Territory of Head Island and McDonald Islands; and
(vi) the Cocos Sea Island Territory and includes any area adjacent to the territorial limits of Australia (including the Territories specified in this subparagraph) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploration for or exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(b) the term "Vietnam" means the Socialist Republic of Vietnam, and, when used in a geographical sense, includes national territory and any area adjacent to the territorial waters of Vietnam and beyond the territorial limit of Vietnam which in accordance with international law has been designated as area within which the rights of the Socialist Republic of Vietnam with respect to the exploration and the exploitation of any natural resources of the seabed and subsoil.
(c) the term "Contracting State" means Australia or Vietnam, as the context requires, the Governments of which have concluded this Agreement;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Vietnam, as the context requires;
(g) the term "tax" means Australia tax or Vietnamese tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Australia tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2.
(i) the term "Vietnamese tax" means tax imposed by Vietnam, being tax to which this Agreement applies by virtue of Article 2.
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorized representative of the Commissioner and, in the case of Vietnam, the Minister of finance or an authorized representative of the Minister.
2. In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall unless the context otherwise requires, have the meaning which it has under the laws of that State from time in force relating to the taxes to which this Agreement applies.
Article 4. Residence
1. For the purposes of this Agreement, a person is resident of a Contracting State
(a) In the case of Australia, if the person is a resident of Australia for the purposes of Australia tax; and
(b) In the case of Vietnam, if the person is liable, under the law of Vietnam, to tax therein by reason of the person's domicile, residence, place of management of any other criterion of a similar nature.
2. A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only income from sources in that State.
3. Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting State, then the status of the person shall be determined in accordance with the following rules :
(a) The person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) If a permanent home is available to the person in both Contracting State, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are closer.
4. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting State, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
Article 5. Permanent Establishment
1. For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" shall include especially :
(a) A place of management;
(b) A branch;
(c) A office;
(d) A factory;
(e) A workshop;
(f) A mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) A agricultural, pastoral or forestry property; and
(h) A building site or construction, installation or assembly project which exists for more than 183 days.
3. An enterprise shall not be deemed to have a permanent establishment merely by reason of :
(a) The use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) The maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) The maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) The maintenance of fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) The maintenance of fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4. An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if :
(a) In carries on supervisory activities in that State for more than 183 days in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) Substantial equipment is being used in that State by, for or under contract with the enterprise.
5. A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firs t mentioned State if :
(a) The persons has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchasing of goods merchandise for the enterprise; or
(b) In so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to that enterprise.
6. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because if carries on business in that other State through a person who is broker, general commission agent or any other a gent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7. The fact that a company which is a resident of a Contracting State controls or is controlled by company which is a resident of the other Contracting State, or which carries, on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
8. The principle set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting State, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
Article 6. Income from Real Property
1. Income from real property may be taxed in the Contracting State in which the real property is situated.
2. IN this Article, the term "real property" :
(a) in the case of Australia, has the meaning which it has under the laws of Australia and includes :
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) A right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural re sources;
(b) In the case of Vietnam, means property which according to the laws of Vietnam is immovable property, and includes :
(i) Property accessory to immovable property;
(ii) Rights to which the provisions of general law in respect of landed property apply; and
(iii) Usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work mineral deposits, sources, and other natural resources;
(c) Does not include ships and aircraft.
3. Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4. The provisions of paragraph 1 apply to income derived from the direct use, letting or use in any other form, of real property.
5. The provisions of paragraph 1, 3 and 4 also apply to income from real property of an enterprise and to income from real property used for the performance of independent personal services.
Article 7. Business Profits
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries o n business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprises of a Contracting State carries on business in the Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to t hat permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3. In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to det ermine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6. Where profits include items of income or gains which are dealt with separately in other Article of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7. Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8. Where :
(a) A resident of a Contracting State is beneficially entitle, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purpose; and
(b) In relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State.
The enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
Article 8. Ships and Aircraft
1. Profits from the operation of ships or aircraft derived by a resident of a Contracting State shall be taxable only in that State.
2. Notwithstanding the provision of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
3. The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organization or in an international operating agency.
4. For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
Article 9. Associated Enterprises
1 Where :
(a) An enterprise of Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the Contracting State; or
(b) The same persons participate directly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State.
And in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then an y profits which, but for those conditions, might have been expected to accrue to one of the any enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State in inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3. Where profits on which an enterprises of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
Article 10. Dividends
1. Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2. Those dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed, in Australia, 15 percent, and, i n Vietnam, 10 percent, of the gross amount of the dividends.
3. The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident is a resident for the purposes of its tax.
4. The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
5. Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Vietnam for the purposes of Vietnamese tax.
Article 11. Interest
1. Interest arising a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2. That interest may be taxed in the Contracting State in which it arises, and according to the law of that State. But the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form or indebtedness and all other income assimilated to income from money lent by the law. Relating to tax, of the Contracting State in which the income arises.
4. The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provision of Article 7 or 14, as the case may be, shall apply.
5. Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting State a permanent establishment or fixed base in connection with which the indebtedness on which the interest i s paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Whether, owning to special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
Article 12. Royalties
1. Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2. Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3. The term "royalties" in this Article means payments or credits, whether periodical or not, and however described or computed, to the extent to which they are made as consideration for :
(a) The use of, or the right to use, any copyright, patent, design or model, plan secret formula or process, trademark or other like property or right; or
(b) The use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) The supply of scientific, technical, industrial or commercial knowledge or information; or
(d) The supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such property or right as is mentioned in subparagraph (a), any such equipment as is mentioned in subparagraph (b) or any such knowledge or information as is mentioned in subparagraph.
(E) the use of, or the right to use :
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(iv) total or partial for bearance in respect of the use or supply of any property or right referred to in this paragraph.
4. The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected wi th that permanent establishment or fixed base. In that case, the provisions or article 7 or 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the perso n paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, owning to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credit ed for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, th e excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
Article 13. Alienation of Property
1. Income, profits or against derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2. Income, profits or against the alienation of property, other than real property that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to fixed ba se available in that other State to a resident of the first mentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that Contracting State (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3. Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4. Income, profits or gains derived by a resident of a Contracting State from the alienation of shares or comparable interest in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
5. Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article app ly.
6. In this Article, the term "real property" has the same meaning as it has Article 6.
7. The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
Article 14. Independent Personal Services
1. Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
2. The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, education or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, dentists and accountants.
Article 15. Dependent Personal Services
1. Subject to the provisions of Article 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first mentioned State if :
(a) The recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) The remuneration is paid by, or on behalf of, employer who is not a resident of that other State; and
(c) The remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) The remuneration is, or upon the application of this Article will be, subject to tax in the first mentioned State.
3. Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
Article 16. Director' fees
Director' fees and similar payments derived by a resident of a Contracting State as a member of the board of director of a company which is a resident of the other Contracting State may be taxed in that other State.
Article 17. Entertainers
1. Notwithstanding the provisions of Article 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2. Where income in respect of the personal activities of an entertainers as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Article 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
Article 18. Pensions and Annuities
1. Pensions (including government pensions) and annuities paid to resident of a Contracting State shall be taxable only in that State.
2. The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money's worth.
3. Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first mentioned State.
Article 19. Government Service
1. Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of government functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who :
(a) is a citizen or national of that State; or (b) did not become a resident of that State solely for the purpose of performing the services.
2. The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or 16, as the case may be, shall apply.
Article 20. Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payment from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.
Article 21. Income Not Expressly Mentioned
1. Items of income of resident of a Contracting State which are not expressly mentioned in the foreign Articles of this Agreement shall be taxable only in that State.
2. However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in the other State.
3. The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment of fixed base situated in the other Contracting State. In that case, the provision of Article 7 or 14, as the case may be, shall apply.
Article 22. Source of Income
1. Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Article 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2. Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Article 6 to 8, 10 to 19 and 21 may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the first mentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
Article 23. Methods of Elimination of Double Taxation
1. Subject to the provisions of the law of Australia from time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Vietnamese tax paid under the law of Vietnam and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Vietnam shall be allowed as a credit against Australian ta x payable in respect of that income.
2. Where a company which is a resident of Vietnam and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 percent of the voting power of the first mentioned company, the credit referred to in paragraph 1 shall include the Vietnamese tax paid by that first mentioned company in respect of that portion of its profits out of which the dividend is paid.
3. For the purposes of paragraph 1 and 2, Vietnamese tax paid shall include an amount equivalent to the amount of any Vietnamese tax forgone.
4. In paragraph 3, the term "Vietnamese tax forgone" means an amount which, under the law of Vietnam relating to Vietnamese tax and in accordance with this Agreement, would have been payable as Vietnamese tax on income but for an exemption from, or a reduction of, Vietnamese tax on that income resulting from the operation of those provisions of the laws of Vietnam which the Treasurer of Australia and the Minister of finance of Vietnam determine from time to time in letters exchanged for this purpose to be provisions to which this paragraph applies. Subject to its terms, such a determination of applicable provisions shall be valid for as long as those provisions are not modified after the date of that determination or have been modified only in minor respects so as not to affect their general character.
5. Paragraphs 3 and 4 shall apply only in relation to those years that may be determined by the Treasurer of Australia and the Minister of finance of Vietnam in letters exchanged for this purpose.
6. Where a resident of Vietnam derives income, profits or gains which under the law of Australia and in accordance with this agreement may be taxed in Australia, Vietnam shall allow as a credit against its tax on the income, profits or gains an amount equal to the tax paid in Australia.
Article 24. Mutual Agreement Procedure
1. Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person m ay, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2. The competent authority shall endeavor, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3. The competent authorities of the Contracting States shall jointly endeavor to resolve any difficulties or doubts arising as to the application of this Agreement.
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
Article 25. Exchange of Information
1. The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation :
(a) To carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) To supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) To supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy
Article 26. Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.
Article 27. Entry into force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Vietnam, as the case may be, and in that event, this Agreement shall have effect :
(a) In Australia:
(i) In respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) In respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) In Vietnam:
(i) In respect of taxes withheld at source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the Agreement enters into force;
(ii) In respect of other Vietnamese tax, in relation to income, profits or gains arising in the calendar year following the calendar year in which the Agreement enters into force, and in subsequent calendar years.
Article 28. Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) In Australia:
(i) In respect of withholding ax on income that is derived by a nonresident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) In respect of other Australia tax, in relation to income, profits or gains of any year of income beginning or after 1 July in the calendar year next following that in which the notice of termination is given.
(b) In Vietnam:
(i) In respect of taxes withheld a source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the notice of termination is given;
(ii) In respect of other Vietnamese tax, in relation to income, profits or gains arising in the calendar year following the calendar year in which the notice of termination is given, and in subsequent calendar years.
IN WITNESS WHERE of the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Hanoi, this.13.day of April, one thousand nine hundred and ninety two in the English and Vietnamese languages, both texts being equally authentic.
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Ôxtrâylia
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13/04/1992
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30/12/1992
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
ON THE COMMON EFFECTIVE PREFERENTIAL TARIFF (CEPT) SCHEME FOR THE ASEAN FREE TRADE AREA (AFTA)
Singapore, 28 January 1992
The Governments of Brunei Darussalam, the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore and the Kingdom of Thailand, Member States of the Association of South East Asian Nations (ASEAN):
MINDFUL of the Declaration of ASEAN Concord signed in Bali, Indonesia on 24 February 1976 which provides that Member States shall cooperate in the field of trade in order to promote development and growth of now production and trade;
RECALLING that the ASEAN Heads of Government, at their Third Summit Meeting held in Manila on 13-15 December 1987, declared that Member States shall strengthen intra-ASEAN economic cooperation to maximise the realization of the region's potential in trade and development;
NOTING that the Agreement on ASEAN Preferential Trading Arrangements (PTA) signed in Manila on 24 February 1977 provides for - the adoption of various instruments on trade liberalisation on a preferential basis;
ADHERING to the principles, concepts and ideals of the Framework Agreement on Enhancing ASEAN Economic Cooperation signed in Singapore on 28 January 1992;
CONVINCED that preferential trading arrangements among ASEAN Member States will act as a stimulus to the strengthening of national and ASEAN Economic resilience, and the development of the national economies of Member States by expanding investment and production opportunities, trade, and foreign exchange earnings;
DETERMINED to further cooperate in the economic growth of the region by accelerating the liberalisation of intra-ASEAN trade and investment with the objective of creating the ASEAN Free Trade Area using the Common Effective Preferential Tariff (CEPT) Scheme;
DESIRING to effect improvements on the ASEAN PTA in consonance with ASEAN's international commitments;
HAVE AGREED AS FOLLOWS:
Article I Definitions
For the purposes of this Agreement :
1. "CEPT" means the Common Effective Preferential Tariff, and it is an agreed effective tariff, preferential to ASEAN, to be applied to goods originating from ASEAN Member States, and which have been identified for inclusion in the CEPT Scheme in accordance with Articles 2 (5) and 3.
2. “Non-Tariff Barriers" mean measures other than tariffs which effectively prohibit or restrict import or export of products within Member States.
3. "Quantitative restrictions" mean prohibitions or restrictions on trade with other Member States, whether made effective through quotas, licences or other measures with equivalent effect, including administrative measures and requirements which restrict trade.
4. "Foreign exchange restrictions" mean measures taken by Member States in the form of restrictions and other administrative procedures in foreign exchange which have the effect of restricting trade.
5. "PTA" means ASEAN Preferential Trading Arrangements stipulated in the Agreement on ASEAN Preferential Trading Arrangements, signed in Manila on 24 February 1977, and in the Protocol on Improvements on Extension of Tariff Preferences under the ASEAN Preferential Trading Arrangements (PTA), signed in Manila on 15 December 1987.
6. "Exclusion List" means a list containing products that are excluded from the extension of tariff preferences under the CEPT Scheme.
7. "Agricultural products" mean :
(a) agricultural raw materials/unprocessed products covered under Chapters 1-24 of the Harmonised System (HS), and similar agricultural raw materials/unprocessed products in other related HS Headings; and
(b) products which have undergone simple. processing with minimal change in form from the original products.
Article 2 General Provisions
1. All Member States shall participate in the CEPT Scheme.
2. Identification of products to be included in the CEPT Scheme shall be on a sectoral basis, i.e. , at HS 6-digit level.
3. Exclusions at the HS 8/9 digit level for specific products are permitted for those Member States, which are temporarily not ready to include such products in the CEPT Scheme. For specific products, which are sensitive to a Member State. pursuant to Article 1 (3) of the Framework Agreement on Enhancing ASEAN Economic Cooperation, a Member State may exclude products from the CEPT Scheme, subject to a waiver of any concession herein provided for such products. A review of this Agreement shall be carried out in the eighth year to decide on the final Exclusion List or any amendment to this Agreement.
4. A product shall be deemed to be originating from ASEAN Member States, if at least 40 % of its content originates from any Member State.
5. All manufactured products, including capital goods, processed agricultural products and those products falling outside the definition of agricultural products, as set out in this Agreement, shall be in the CEPT Scheme. These products shall automatically be subject to the schedule of tariff reduction, as set out in Article 4 of this Agreement. In respect of PTA items, the schedule of tariff reduction provided for in Article 4 of this Agreement shall be applied, taking into account the tariff rate after the application of the existing margin of preference (MOP) as at 31 December 1992.
6. All products under the PTA which are not transferred to the CEPT Scheme shall continue to enjoy the MOP existing as at 31 December 1992.
7. Member States, whose tariffs for the agreed products are reduced from 20% and below to O%-5%, even though granted on an MFN basis, shall still enjoy concessions, Member States with tariff rates at MFN rates of O%-50/o shall be deemed to have satisfied the obligations under this Agreement and shall also enjoy the concessions.
Article 3: Product Coverage
This Agreement shall apply to all manufactured products, including capital goods, processed agricultural products, and those products failing outside the definition of agricultural products as set out in this Agreement. Agricultural products shall be excluded from the CEPT Scheme.
Article 4: Schedule of Tariff Reduction
1. Member States agree to the following schedule of effective preferential tariff reductions:
(a) The reduction from existing tariff rates to 20 % shall be done within a time frame of 5 years to 8 years, from 1 January 1993, subject to a programme of reduction to be decided by each Member State, which shall be announced at the start of the programme. Member States are encouraged to adopt an annual rate of reduction, which shall be (X-20)% / 5 or 8, where X equals the existing tariff rates of individual Member States.
(b) The subsequent reduction of tariff rates from 20% or below shall be done within a time frame of 7 years. The rate of reduction shall be at a minimum of 5% quantum per reduction. A programme of reduction to be decided by each Member State shall be announced at the start of the programme.
(c) For products with existing tariff rates of 200/o or below as at 1 January 1993, Member States shall decide upon a programme of tariff reductions, and announce at the start, the schedule of tariff reductions. Two or more Member States may enter into arrangements for tariff reduction to 0%-5% on specific products at an accelerated pace to be announced at the start of the programme.
2. Subject to Articles 4 (1) (b) and 4 (1) (c) of this Agreement, products which reach, or are at tariff rates of 20% or below, shall automatically enjoy the concessions
3. The above schedules of tariff reduction shall not prevent Member States from immediately reducing their tariffs to 0%-5% or following an accelerated schedule of tariff reduction.
Article 5: Other Provisions
A. Quantitative Restrictions and Non-Tariff Barriers
1. Member States shall eliminate all quantitative restrictions in respect of products under the CEPT Scheme upon enjoyment of the concessions applicable to those products.
2. Member States shall eliminate other non-tariff barriers on a gradual basis within a period of five years after the enjoyment of concessions applicable to those products.
B. Foreign Exchange Restrictions
Member States shall make exceptions to their foreign exchange restrictions relating to payments for the products under the CEPT Scheme, as well as repatriation of such payments without prejudice to their rights under Article XVIII of the General Agreement on Tariff and Trade (GATT) and relevant provisions of the Articles of Agreement of the International Monetary Fund (IMF).
C. Other Areas of Cooperation
Member States shall explore further measures on border and non-border areas of cooperation to supplement and complement the liberalisation of trade. These may include, among others, the harmonisation of standards, reciprocal recognition of tests and certification of products, removal of barriers to foreign investments, macroeconomic consultations, rules for fair competition, and promotion of venture capital.
D. Maintenance of Concessions
Member States shall not nullify or impair any of the concessions as agreed upon through the application of methods of customs valuation, any new charges or measures restricting trade, except in cases provided for in this Agreement.
Article 6: Emergency Measures
1. If, as a result of the implementation of this Agreement, import of a particular product eligible under the CEPT Scheme is increasing in such a manner as to cause or threaten to cause serious injury to sectors producing like or directly competitive products in the importing Member States, the importing Member States may, to the extent and for such time as may be necessary to prevent or to remedy such injury, suspend preferences provisionally and without discrimination, subject to Article 6 (3) of this Agreement. Such suspension of preferences shall be consistent with the GATT.
2. Without prejudice to existing international obligations, a Member State, which finds it necessary to create or intensify quantitative restrictions or other measures limiting imports with a view to forestalling the threat of or stopping a serious decline of its monetary reserves, shall endeavour to do so in a manner, which safeguards the value of the concessions agreed upon.
3. Where emergency measures are taken pursuant to this Article, immediate notice of such action shall be given to the Council referred to in Article 7 of this Agreement, and such action may be the subject of consultation as provided for in Article 8 of this Agreement.
Article 7: Institutional Arrangements
1. The ASEAN Economic Ministers (AEM) shall, for the purposes of this Agreement, establish a ministerial-level Council comprising one nominee from each Member State and the Secretary-General of the ASEAN Secretariat. The ASEAN Secretariat shall provide the support to the ministerial-level Council for supervising, coordinating and reviewing the implementation of this Agreement, and assisting the AEM in all matters relating thereto. In the performance of its functions, the ministerial-level Council shall also be supported by the Senior Economic Officials' Meeting (SEOM).
2. Member States which enter into bilateral arrangements on tariff reductions pursuant to Article 4 of this Agreement shall notify all other Member States and the ASEAN Secretariat of such arrangements.
3. The ASEAN Secretariat shall monitor and report to the SEOM on the implementation of the Agreement pursuant to the Article III (2) (8) of the Agreement on the Establishment of the ASEAN Secretariat. Member States shall cooperate with the ASEAN Secretariat in the performance of its duties.
Article 8: Consultations
1. Member States shall accord adequate opportunity for consultations regarding any representations made by other Member States with respect to any matter affecting the implementation of this Agreement. The Council referred to in Article 7 of this Agreement, may seek guidance from the AEM in respect of any matter for which it has not been possible to find a satisfactory solution during previous consultations.
2. Member States, which consider that any other Member State has not carried out its obligations under this Agreement, resulting in the nullifications or impairment of any benefit accruing to them, may, with a view to achieving satisfactory adjustment of the matter, make representations or proposal to the other Member States concerned, which shall give due consideration to the representations or proposal made to it.
3. Any differences between the Member States concerning the interpretation or application of this Agreement shall, as far as possible, be settled amicably between the parties. If such differences cannot be settled amicably, it shall be submitted to the Council referred to in Article 7 of this Agreement, and if necessary, to the AEM.
Article 9: General Exceptions
Nothing in this Agreement shall prevent any Member State from taking action and adopting measures, which it considers necessary for the protection of its national security, the protection of public morals, the protection of human, animal or plant life and health, and the protection of articles of artistic, historic and archaeological value.
Article 10: Final Provisions
1. The respective Governments of Member States hall undertake the appropriate measures to fulfil the greed obligations arising from this Agreement.
2. Any amendment to this Agreement shall be made by consensus and shall become effective upon acceptance by all Member States.
3. This Agreement shall be effective upon signing
4. This Agreement shall be deposited with the Secretary-General of the ASEAN Secretariat, who shall likewise promptly furnish a certified copy thereof o each Member State.
5. No reservation shall be made with respect to any of the provisions of this Agreement.
In witness whereof, the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement on Common Effective Preferential Tariff (CEPT) Scheme for the Free Trade Area (AFTA).
Done at Singapore, this 28th day of January, 1992 in a single copy in the English Language.
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Khongso
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Điều ước quốc tế
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Chính phủ các nước
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RAFIDAH AZIZ, Abdul Rahman Taib, Arifin M. Siregar, Peter D. Garrucho, Lee Hsien Long, Amaret Sila_on
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28/01/1992
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28/01/1992
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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AGREEMENT
TEMPORARILY HANDLING WORKS IN BORDERING AREAS OF TWO COUNTRIES BETWEEN THE GOVENRMENT OF SOCIALIST REPBULIC OF VIETNAM AND THE GOVERNMENT OF PEOPLE’S REPUBLIC OF CHINA
The Government of Socialist Republic of Vietnam and the Government of People’ Republic of China (hereinafter referred to as “Parties”), on the principal of respect for each other's sovereignty, territorial integrit, neither intruding nor interfering each other’s internal affairs, equality, mutual benefits for the purpose of tightening the relationship of two parties which facilitate the stable living and cross-border movement of borderers and bordering security in pursuit of developing the Vietnam-China border into a border of peace and friendship, pending the starting of border negotiation between two parties, decide to sign the Temporary agreement on handling of works in the bordering areas of two parties containing provisions as follows:
Chapter I:
BORDER PROTECTION
Article 1
1. Two parties shall manage the border based on its geographical boundaries; neither parties may take any artificial acts to change the geographical boundaries at present as such natural borders will not affect the negotiation on the border between two parties in the coming time.
2. The Central Governments of two parties have the authority to deal with all issues regarding the border between them. All local authorities and local governments of both parties are prohibited from changing the border lines of two parties; any change will be considered invalid and must be discarded.
3. Both parties mutually agree to preserve the boundary markers; the party that discovers any change in boundary markers and other boundary criteria must immediately notify another party. The head of both parties will make a visit at site together to record the change and send a report to the department in charge of each country. The Department in charge of each party shall handle based on the results of the discussion or wait until the negotiation concerning the country’s border.
Chapter 2:
PRODUCTION AND OTHER ACTIVITIES IN BORDERING AREAS
Article 2
1. With regard to the hydrological measurement of border rivers, making use of such border rivers as well as other activities related to such border rivers, two parties need to consult with each other on the principle of equality and mutual benefits as well as respect for each other's benefits, avoiding losses for another party and changes in border rivers Any project affecting the border rivers must be mutually approved by both parties before being carried out.
2. Borderers may be engaged in production activities in the border rivers of their own country as regulated by the laws of their countries.
Article 3
1. Firing a gun or causing an explosion within 2 km from each other's boundary line is prohibited. Notify another party in advance if explosion is unavoidable.
2. Burning fields within 1 km from each other's boundary line is prohibited.
3. Above-mentioned activities must not harm the boundary marker, other boundary criteria as well as the life of human and cattle.
Article 4
Both parties must prohibit the borderers from crossing the border for the purpose of logging, animal husbandry, hunting, exploiting specialties or performing other actions for illegal purposes.
Article 5
Notify another party in advance when conducting an aerial photography and dropping an aerial exploration object for peaceful purposes in the bordering vicinity. The entry into the airspace of another party must be approved by such party.
Chapter 3:
CROSS-BORDER MOVEMENT OF BORDERERS
Article 6
1. Both parties permit their borderers to enter and exit each other's country for the purpose of visiting relatives, friends, undergoing medical examination and treatment, selling and purchasing goods and participating in friendship festivals on traditional national holidays.
2. The borderers of the Parties must carry the borer laissez passer issued by competent authorities of their country and enter or exit through the border checkpoints or border crossings specified by both parties.
The laissez passer must clearly specify full name, gender, date of birth, residence place, reasons for entry/exit, the border checkpoint of the entered country, validity and bear a photo of the passer's owner; any border laissez passer without its owner's photo must be accompanied by the owner's identity card. The border laissez passer shall be only granted to borderers of two parties, bordering traders and bordering workers participating in friendship festivals on traditional holidays of two parties when engaged in activities in bordering areas.
Children under 16 accompanying their parents when entering or exiting either country must be clearly specified in the laissez passer of their parents.
3. The laissez passer shall be printed out by competent authorities of each country in both Vietnamese and Chinese and sent to another party before it is put into use.0}
4. People not mentioned above must carry a passport with visa and go through the border checkpoints specified by both parties.
5. A person of either party when undertaking any activity in the territory of another party must comply with provisions of laws of such party and relevant regulations issued by both parties for the purpose of protecting the legitimate rights and benefits of the person of another party.
6. Pursuant to relevant regulations on customs, verification and inspection issued by each party, both parties shall inform each other of the type, value, quantity of goods and currency for trading in bordering market and private use carried by their people when entering or exiting each other's country.
Article 7
1. Both parties decide to open the following border checkpoints:
Names of Vietnam border checkpoins
Names of China border checkpoints
1. Mong Cai
1. Dongxing
2. Hoanh Mo
2. Dongzhong
3. Chi Ma
3. Ai Dian
4. Huu Nghi (land crossing)
4. Friendship Pass (Youyiguan)
5. Dong Dang
5. Pingxang
6. Binh Nghi
6. Ping’er
7. Ta Lung
7. Shuikou
8. Ha La
8. Kejia
9. Ly Van
9. Shoulong
10. Pho Pheo
10.Yuexu
11. Tra Linh
11. Longbang
12. Soc Giang
12. Pingmeng
13. Sam Phun
13. Tianpeng
14. Pho Bang
14. Donggan
15. Thanh Thuy
15. Tianbao
16. Xin Man
16. Dulong
17. Muong Khuong
17. Qiaotou
18. Lao Cai
18. Hekou
19. Ma Lu Thang (Ba Nam Cum)
19. Jinshuihe
20. U Ma Tu Khoang (Thu Lum)
20. Pinghe
21. A Pa Chai
21. Longfu
Above-mentioned border checkpoints will be gradually opened when possible, time and procedure for opening such border checkpoints will be determined by both parties and through diplomatic channels of two parties, both parties agree to create favorable conditions for the opening of seven pairs of border checkpoints as follows:
Dong Bang – Pingxang
Huu Nghi – Youyiguan
Mong Cai – Dongxing
Ta Lung – Shuikou
Lao Cai – Hekou
Ma Lu Thang - Jinshuihe
Thanh Thuy – Tianbao
2. Among border checkpoints mentioned in clause 1 in this Article, four pairs of border checkpoints which are Dong Dang - Pingxang, Huu Nghi - Youyiguan, Mong Cai - Dongxing, Lao Cai - Hekou will be opened for people carrying a passport with visa and people with a border laissez passer issued by either party or people carrying a passport with visa issued by a third country or transmitting through a third country as well as goods for trading purposes while three pairs of border checkpoints which are Ta Lung – Shuikou, Ma Lu Thang – Jinshuihe and Thanh Thuy – Tianbao will be opened for people carrying a passport with visa and people with a laissez passer issued by either party as well as goods for trading purpose in local areas and bordering areas. The other border checkpoints will be opened only for people with laissez passer and goods for trading purposes in bordering areas.
3. Where force majeure events occur in places far from border checkpoints prescribed in clause 1 in this Article or there are other special requirements, the local governments of bordering provinces of two parties shall consult with each other to open temporary crossings. After the consultation, the local governments of bordering of provinces of the Parties will send a report to their Government for approval for implementation.
The verification of the cross-border movement through temporary border crossings shall adhere to methods for managing official border checkpoints,
Chapter 4:
MANAGEMENT OF BORDER SECURITY
Article 8
1. Two parties cooperate with each other in maintaining the border order and security. Primary missions include notifying situations in bordering areas regarding the social security of another party, dealing with people entering or exiting another country illegally, discussing to conduct an investigation on cases concerning foreign countries. Cooperating in questioning, chasing, arresting and transferring criminals crossing the border, preventing and taking actions against crossing the border for smuggling, drug trafficking, arms trafficking, counterfeit silver production, women and children trafficking
2. Two parties, based on their own laws, take appropriate measures for violations against their regulations on management of border. The full name, photo and address of the litigant must be provided before the transfer; time for transferring and relevant evidences transferred at once to another party will be determined after receiving the approval from another party. This regulation on criminal transferring shall not cover people of a third country.
3. The competent authorities of two parties could contact with each other to discuss the maintenance of social order and security in the bordering areas of two parties.
Chapter 5:
BORDERING TRADING AND LOCAL TRADING
Article 9
1. Both parties permit trading agencies engaged in the bordering and local trading of two parties to carry out bordering trading and local trading in bordering areas. Particular methods for conducting bordering and local trading will be decided by the local governments of bordering provinces through discussion in accordance to law in force and relevant regulations issued by the Government of two parties.
2. Both parties agree to open market points in border crossings and bordering markets in communes located along the border of Vietnam and China, details will be decided by the local governments of bordering of provinces after discussion in accordance to law in force and relevant regulations issued by the Government of two parties.
3. Goods to be traded and transport vehicles in import and export of two parties must be licensed by competent authorities of each party and must comply with relevant law provisions and regulations issued by the Customs Department and verification, inspection departments of each party.
Article 10
1. Two parties shall collect the tariff and relevant taxes for goods to be traded prescribed in this agreement.
2. For modes of trading prescribed in this agreement, both parties must comply with provisions of the law on import and export of their own countries and prevent the import and export of prohibited goods and smuggling.
Chapter 6:
COMMUNICATION BETWEEN LOCAL GOVERNMENTS OF BORDERING AREAS OF TWO PARTIES
Article 11
For the purpose of enhancing the management of bordering areas of two parties, local governments of bordering areas must create a regime for communication:
1. Corresponding contacts between local governments of two parties is:
- Lai Chau– Yunnan xian (China)
- Lao Cai, Ha Giang (Vietnam)
- Cao Bang, Lang Son
Quang Ning (Vietnam) – Guangxi zhuang autonomous region (China)
2. The local governments of two parties shall be in charge of handling and carrying out mandatory tasks relating to this Agreement described as follows:
a) Tasks authorized by the central government
b) Verification management and protection of bordering segments, boundary markers under management
c) Civil issues in bordering areas including production, sale, marriage, relocation, activities regarding traditional friendship festivals, management of daily cross-border movement of borderers
d) Border security issues including the cooperation in management of security for preventing smuggling and drug trafficking, etc
e) Other issues to be handled by local governments approved by the Government of two parties
3. Communication between local governments of two parties will be established through consultation. Contents, time and place of the consultation shall be determined in advance through communication between two border defence agencies of two parties. The place of consultation could be near to the border checkpoints (border crossings) or the capital district. The consultation of provincial authorities could take place in the capital of relevant provinces.
4. Each consultation shall be recorded in a consultation minutes in both Vietnamese and Chinese, each with two copies bearing the signatures of the representative of two parties will be implemented after provincial authorities of two parties finish relevant procedures of their countries and notify each other.
5. Authorities of bordering districts may communicate with each other. Such communication shall be approved by provincial authorities of two parties and the communication results must be sent to provincial authorities.
Article 12
Agencies in charge of managing boundary lines and bordering areas as well as relevant agencies such as customs offices, border defense control agencies, goods control agencies, health quarantine - animal and plant quarantine agencies and trading agencies located in bordering areas of two parties may communicate with each other.
Chapter 7:
FINAL PROVISIONS
Article 13
1. Border rivers mentioned in this Agreement mean rivers crossing or coinciding with the border lines of two parties.
2. Borderers mentioned in this Agreement mean people living in communes adjacent to bordering areas of two parties.
3. Bordering areas referred in this Agreement mean districts adjacent to the boundary lines of two parties.
Article 14
This Agreement comes into force from the day on which it is signed.
This Agreement will expire after 2 years and 6 months, if neither party hereby informs in writing to each other of its termination, it will be automatically expanded for 2 more years. Where necessary, two parties will have a meeting to review and learn from the experiences in implementation of such Agreement or to identify the amendments to this Agreement 6 months prior to its expiration.
This Agreement is signed in Beijing on November 1991 and made into 2 copies, each in both Vietnamese and Chinese with equal validity.
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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Khongso01
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Điều ước quốc tế
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Chính phủ Cộng hòa Nhân dân Trung Hoa, Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam
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07/11/1991
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07/11/1991
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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TRADE AGREEMENT
BETWEEN THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF PEOPLE’S REPUBLIC OF CHINA (1991)
The Government of the Socialist Republic of Vietnam and the Government of the People’s Republic of China (herein after referred to as "the Parties")
Desiring to further promote the friendly cooperation and trade relation of the two nations on the basis of equality and mutual benefits
Recognizing the commercial and economic development characteristics of each country
Have agreed as follows:
ARTICLE 1
Parties, according to their demand and capacity, will proactively promote the stable and profound Vietnam- China trade relation.
ARTICLE 2
The two nations agree to grant each other the Most Favoured Nation treatment in import-export duties and customs procedures. This treatment shall be independent and not affect any benefit and preference each country grants to their particular trading partners.
ARTICLE 3
Trade between two countries shall be conducted on the basis of contracts signed by foreign trade companies and economic entities of the two countries having the entitlement to operation of foreign trade under provisions hereof (hereinafter referred to as “entitled economic entity”), national regulations of laws and international trade practices.
ARTICLE 4
Prices of commodities of trade contracts shall be determined by reference to their international prices and shall be negotiated and agreed upon by the countries’ foreign trade companies; the payment shall be made in convertible currency as mutually agreed. The payment clause shall be mutually agreed by banks of the Parties.
ARTICLE 5
The Parties hereby agree to, besides currencies, the foreign companies or entitled economic entities shall be entitled to do business of which payment shall be made in other means provided that it is agreed by the Parties.
ARTICLE 6
The Parties agree to surge private trade along the Vietnam-China border. The private trade and its matters shall be governed by the respective regulations of laws of the two countries.
ARTICLE 7
The Parties agree to facilitate trade promotion activities such as market fairs, etc. organized by a country and its relevant authorities in the territory of the other country.
ARTICLE 8
For the purpose of implementing this Agreement, the representatives of the Ministry of Trade and Tourism of the Socialist Republic of Vietnam and the representatives of the Ministry of Foreign Trade and Economic Cooperation of the People’s Republic of China shall hold dialogues to exchange viewpoints of the bilateral trade between the two nations, where necessary.
ARTICLE 9
After the expiration of this Agreement, trade contracts which are concluded in accordance with this Agreement but have yet to be completely executed shall remain effective until they are completely executed.
ARTICLE 10
The Ministry of Trade and Tourism of the Socialist Republic of Vietnam and the Ministry of Foreign Trade and Economic Cooperation of the People’s Republic of China shall be responsible for the implementation of this Agreement.
ARTICLE 11
This Agreement enters into force from the date on which it is signed and shall be effective for 03 years. 03 months prior to the expiration of this Agreement, in the event that no written request for termination of this Agreement is filed by either party, the Agreement shall remain effect for 01 additional year and continue to be extended accordingly.
This Agreement is signed on November 07, 1991 in Beijing. This Agreement is made in 02 copies in Vietnamese and Chinese having the same legal effect.
FOR PLENIPOTENTIARY OF THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM
FOR PLENIPOTENTIARY OF THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hòa Nhân dân Trung Hoa, Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam
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***
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07/11/1991
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07/11/1991
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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NATIONAL ASSEMPLY
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No. : 21-LCT/HDNN8
Hanoi, June 30, 1989
LAW
OF NATIONAL ASSEMPLY NO.21-LCT/HDNN8 DATED 30/06/1989 OF PEOPLE’S HEALTH
Health is the most precious property of human being, as one of the basics for people to live happily, as the goal and an important factor in the development of economy, culture, society and national defense.
To protect and strengthen people's health;
Pursuant to Article 47, Article 61 and Article 83 of the Constitution of the Socialist Republic of Vietnam;
This Law provides for protection for people's health.
Chapter 1:
GENERAL PROVISIONS
Article 1. Rights and obligations of citizens in health protection
1 - Citizens have the right to be protected health, taken a rest, recreated, and done their excercises; be guaranteed occupational hygiene, nutritional hygiene, and living environmental sanitation and to be served medical care.
2 – Health protection is the work of the entire population. All citizens are obliged to strictly implement the provisions of law on the protection of people’s health to preserve their health and for every body.
Article 2. Guiding principles for the protection of health
1 - To promote communication, education, and sanitation among the people; to carry out the preventive measures, improve and clean living environment; and ensure occupational sanitation standards, hygiene of staple, food, and drink in accordance with the provisions of the Ministers’ Council.
2 – To expand the network of motels, nursing homes, training facilities of physical training and sports; to combine labour and study with rest and recreation; to develop mass physical training and sports to maintain and restore the working capacity.
3 - To improve and enhance quality and expand the network of prevention and combat of epidemic, medical examination and treatment; and coordinate development of the State health system with collective health services and private health services.
4 – To build the medicine of Vietnam inheritted and developing traditional medicine, pharmacology; combine modern medicine, pharmacy with traditional medicine, pharmacy, research and apply the scientific and technical progress of international medicine into practice of Vietnam, build spearheads of medical science, pharmacy of Vietnam.
Article 3. Responsibilities of the State
1 - State takes care to protect and enhance people's health; set the protection of people's health into the economic - social development plans and state budget; decide on the regime and policies and measures to protect and improve people's health.
2 - Ministry of Health is responsible for management, completion, improvement of quality and development of disease prevention system, anti-epidemic, medical examination and treatment, production and circulation of drugs and medical devices, inspection of the implementation of the regulations on professional skill of health services and pharmacy.
3 - People's Councils at all levels reserve adequate budget proportion for the protection of people's health at local levels; regularly monitor and supervise the compliance with the law on protection of the People's Health of the People’s Committees at the same level, the agencies and the social organizations, facilities of production and doing business of the State, collectives, private sector and all citizens in the localities. People's Committees at all levels shall take measures to ensure hygiene for food, accommodation, activities, public rest rooms for local people; the leaders of attached medical bodies direct the coordination among branches and social organizations in their localities to implement the provisions of law on the protection of people's health.
Article 4. Responsibilities of State agencies, the facilities of production and doing business and the people's armed units.
The State agencies, the facilities of production and doing business of the State, the people's armed units (collectively called as the state organizations), the facilities of production and doing business of collectives and private sectors are responsible for caring for, protecting and enhancing the health of the members in their agencies and units and contributing money and effort under their abilities for the protection of people's health.
Article 5. Responsibilities of social organizations
1 - The Vietnam Fatherland Front, Labor Confederation of Vietnam, the Communist Youth Union of Ho Chi Minh, the Vietnam Women's Union, Vietnam Farmers Association, Vietnam General Assembly of Medicine, the Traditional Medicine Association of Vietnam Nation and other social organizations motivate and educate the members of the organizations to implement the provisions of law on the protection of people's health and participate actively in the protection of people's health within their organizations’ charters.
2 - The Vietnam Red Cross propagates and disseminates knowledge of health education to members and the people and mobilizes people to implement measures to maintain health for themselves and for all, give blood to rescues people’s lives; organize to help people when accidents, natural disasters, epidemics and wars occur.
Chapter 2:
HYGIENE IN LIVING AND LABOR, PUBLIC SANITATION, PREVENTION AND COMBAT OF EPIDEMIC
Article 6. Hygiene education
1 - The agencies of health, culture, education, sports and physical training, media and other social organizations shall propagate and educate people the medical knowledge and normal knowledge of sanitation, environmental hygiene, feminine hygiene, pregnant sanitation, and children nursing.
2 - Ministry of Education builds up the hygiene education programs for children at school, preschool, kindergarten to create habits to keep general hygiene and sanitation in living and learning.
Article 7. Hygiene of staple, food, drinks and alcohol
1 - The State organizations, collectives, private sectors as production, processing, packaging, storage and transportation of staple, food, drinks and alcohol must ensure the hygiene standards. When putting the new chemicals, new materials or new additives into processing, preservative of staple, food, drinks, alcohol, and all kinds of products packaged must be permitted by the Departments of Health.
2 - Prohibited the production, circulation, export, import of staple, food, drinks, and alcohol not ensuring hygiene standards.
3 - Persons who are infected with contagious diseases are not done works that are directly related food, drinks, alcohol.
Article 8. Water hygiene and water sources used in daily life of the people
1 - The water supply agencies and enterprises must ensure water hygiene standards in the daily life of the people.
2 - Prohibited the state organizations, collectives, private sectors and every citizen to pollute water sources used in the life of the people.
Article 9. Hygiene in production, storage, transport and use of chemicals.
1 - The State organizations, collectives, private sectors and every citizen as production, storage, transportation, use of fertilizers, pesticides, herbicides, rodenticides, growth stimulants bred animals, plants and other chemicals must ensure hygiene standards, not causing harm to human health.
2 - The establishments producing cosmetics, toys, personal hygiene items by chemicals must ensure hygiene standards.
Article 10. Sanitation for waste in industry and in daily life
1 - The factories, the production facilities of the State, collectives, private sectors must implement the measures of waste treatment in industry to prevent and combat air pollution, soil and water under the provisions of the Council of Ministers.
2 - The State organizations, social organizations, collectives, private sectors and every citizen are not let the wastes of daily life pollute the living environment in the residential areas.
Article 11. Hygiene in the livestock husbandry of cattle and poultry
1 - The livestock husbandry of cattle and poultry must ensure the general cleanliness. Not to slaughter, purchase and eat meat of cattle, poultry gotten infectious diseases harmful to human health.
2 - Strictly forbidden to let dogs in cities, towns and townships run freely; raised dogs must be vaccinated according to provisions of veterinary agencies.
Article 12. Hygiene in construction
The planning of construction and renovation of residential areas, industrial buildings and other civil works must comply with hygiene standards.
Article 13. Hygiene in schools and kindergartens
1 - People's Councils, People's Committees at all levels, education branch and other concerned sectors must ensure facilities, equipment, lighting, and tools for teaching and learning in schools and kindergartens, not to affect the health of students and teachers.
2 - The principals of schools and kindergartens’ chairmen shall ensure the implementation of training programs have been prescribed; hygiene for school and classes and kindergarten.
Article 14. Occupational hygiene
1 - The State organizations, collectives and private sectors must implement measures to ensure occupational safety, hygiene standards for temperature, humidity, smoke, dust, noise, vibrations and on the other toxic elements in productive labor to protect health, prevent and combat occupational diseases for employees, not causing adverse impacts on the surrounding environment.
2 - Units and employers must organize the periodic health examinations for workers and must be equipped with necessary labor protection for workers.
Article 15. Sanitation in public places
1 - Everyone must have the responsibility for implementing the regulations on public hygiene.
2 – Prohibited to defecate, litter and throw other waste on the streets, gardens, parks and other public places.
3 - Prohibited to smoke in the meeting rooms, in cinemas, theaters and other specified places.
Article 16. Hygiene in the funeral, embalming, burial, cremation, moving of remains
1 - The funeral, embalming, burial, cremation, moving of remains must comply with the regulations on epidemic prevention. The State encourages and cremation of remains.
2 - As moving the remains across the borders of Vietnam, it must be licensed in accordance with the provisions of Council of Ministers of the Socialist Republic of Vietnam.
Article 17. Prevention and combat of infectious diseases and epidemics
1 – The Departments of Health must organize vaccination for the disease prevention to people.
2 - The State organizations, collectives, private sectors and all citizens must take measures to prevent and combat infectious diseases and epidemics. Upon detection of the epidemic disease or suspicion of epidemic disease in the units, locality, health agencies must report promptly to the same level People's Committees and the health authority of higher level.
3 - The People's Committees at all levels must ensure that prevention and combat of local epidemic.
4 - Based on the dangerous nature and severity of each epidemic, Chairman of the Council of Ministers, Minister of Health, Chairmen of People's Committees of provinces, centrally-run cities and special zones have the rights to apply special measures to quickly extinguish the epidemic.
Article 18. Quarantine
1 - Animals, plants, transportation means of goods to the border and transit at the Socialist Republic of Vietnam must be quarantined.
2 - Animals, plants, transportation means, cargos and postal matters from the epidemic areas moved to the non-epidemic areas must be quarantined at the transport hubs and post offices.
Chapter 3:
PHYSICAL TRAINING, SPORT, CONVALESCE AND REHABILITATION
Article 19. Organization of physical training, sports activities
1 - The branches and levels, the state organizations, social organizations, collectives, private sectors are responsible for creating the necessary conditions and organize and mobilize people to participate in physical training, sports activities.
2 - General Department of Sports and Physical Training collaborates with the relevant industry in research and dissemination of training methods, subjects, assignments of sports, physical training suitable to physical strength, ages, industries, treatment with exercise; construction and development of sports medicine; training officers, instructors, coaches and teachers of physical training, sports.
3 - Strictly prohibited rude behaviors in exercise and competitions of sports.
Article 20. Organization of rest and convalescence
1 - General Confederation of Labor of Vietnam, the branches and levels, the state organizations, social organizations, collective organizations are responsible for expanding the nursing facilities, resort and health club.
2 - The organizations and private employers must create conditions for workers to be nursed and taken a rest.
Article 21. Rehabilitation
1 - Ministry of Health, Ministry of Labour - Invalids and Social Affairs develop and ensure the necessary conditions for the establishment of rehabilitation to operate.
2 - The health sector, the sector of Labor - Invalids and Social Affairs collaborate with related industries, the social organizations to expand rehabilitation activities based on the community to prevent and limit the consequences of disability; apply appropriate techniques to bring disabled people to return to normal life.
Article 22. Nursing, health recovery by natural factors
Mineral water, mud mines as medicine, beach areas, climate areas and other natural elements have special pharmacological effects to be used in nursing and health rehabilitation.
Council of Ministers shall defines the identification, classification, management and exploitation, use and protection of the natural elements specified in this Article
Chapter 4:
EXAMINATION AND TREATMENT
Article 23. Right of medical examination and treatment
1 - People of sickness, illness, accidents are apply medical examinations and treatment at the facilities of medical examination and treatment where citizens reside, work or study.
The sick people have been chosen doctor or physician, selected facilities of medical examination and treatment, and travel abroad for medical examination and treatment in accordance with provisions of the Council of Ministers.
2 - In cases of emergencies, patients are taken first aid at any facility of medical examination and treatment. The facility of medical examination and treatment must receive and handle every case of emergencies.
Article 24. Conditions for practicing physician
People with a medical degree at the universities or secondary schools and licensed for practice by the Ministry of Health or the Health Department to be examined and treated at the medical facilities of State, collectives, private sectors.
Article 25. Responsibilities of the physician
1 - Physicians are obliged medical examination, treatment, prescription and instructions on the method of disease prevention, self-healing for patients; must keep secret the items related to disease or personal information that he/she is known on the patients.
2 - The physician must be ethical, have a sense of responsibility, remedy dedicated with patients; and strictly observe the rules of professional skill, medical technique; only use the methods, facilities, pharmaceutical products permitted by the Ministry of Health.
3 - Strictly forbidden the irresponsible behavior in emergencies, medical examination, and treatment causing harm to the health, life, honor, and dignity of patients.
Article 26. Help, protection of physician and medical staffs
1 - All organizations and citizens have responsibility to help, protect physicians and medical staffs when they do their tasks.
2 - In case of emergency to bring the sick or injured to the emergency facilities, physicians, medical staffs are entitled to use the available means of transport in place. Drivers of vehicles must comply with the requests of the physicians and medical staffs.
3 - Prohibited the harm to the health, life, honor, and dignity of physicians and medical staffs while they are on duty.
Article 27. Responsibilities of patients
1 - Patients have the responsibility to respect physicians and medical staffs; observe the provisions in the medical examination and treatment.
2 - The patients must pay part of medical expenses. Council of Ministers provides for the collection of medical costs.
Article 28. Treatment by surgery
Physicians are operated only after obtaining the consent of the patients. For patients who are minors, the patients who are unconscious or mental illness must be the consent of relatives or guardians of patients. In cases relatives or guardians of patients disagreed or relatives or guardians are absent, if not timely surgery may cause harmful to the life of the patients, the physicians may decide, but must have the approval of the person in charge or authorized person of the medical facilities.
Article 29. Compulsory treatment
1 - The medical facilities shall take all measures compulsory medical treatment for people with are severe mental illness, tuberculosis, lazarine leprosy being in the vulnerability period; diseases sexually transmitted, drug addiction, AIDS and some other infectious diseases can cause harm to society.
2 - The compulsory medical treatment at health facilities must be made in accordance with the law provisions.
Article 30. Getting and grafting tissue or a part of the human body
1 - Physicians conduct to get tissue or body parts of alive or dead people for use in medical purposes only after having the consent of the givers, the relatives who have died or dead people who left their wills.
2 - The grafting of tissue or body parts for patients must have their consents or their relatives or guardians of minor patients.
3 - The Health Ministry prescribes the regime to care for health of givers of tissue, or a body part.
Article 31. Autopsy
Hospitals are entitled to take surgery of dead bodies at the hospitals in case of necessity to improve the quality of medical examination and treatment. The medical universities are used unclaimed cadavers and of those who left their wills for use for purposes of study and scientific research.
Article 32 Medical examination and treatment for foreigners in Vietnam
1 - Foreigners who are being in the territory of Vietnam are allowed to take medical examination and treatment at the medical facilities and must comply with the legal provisions on the protection of people's health. Foreigners can enter Vietnam for medical examination and treatment.
2 - The Council of Ministers shall prescribe the regime of medical examination and treatment for foreigners in Vietnam.
Article 33. Medical evaluation
1 - Medical Evaluation Board determines health status and working capacity of employees at the request of the employers and employees.
2 - The employers and the social insurance agencies must be based on the conclusions of the Medical Evaluation Board to implement policies for employees.
Chapter 5:
TRADITIONAL MEDICINE, PHARMACOLOGY
Article 34. Inheritance and development of traditional medicine, pharmacology
1 – The Ministry of Health, the Traditional Medicine Association of Vietnam and the General Assembly of Vietnam Medicine, Pharmacology are responsible for organizing the inheritance and development of traditional medicine, pharmacology in combination with modern medicine, pharmacology with traditional medicine, pharmacology in all areas of medical activities and ensuring the operating conditions for the hospitals, the first-industry institute of traditional medicine.
2 - The health sector, the People's Committees at all levels must strengthen and expand health service network in traditional medicine, pharmacology, and development of raising, planting pharmarceutical products in their localities.
Article 35. Conditions of physician’s practice
Those who are graduated at the schools, classes or handed down from ancestors on traditional medicine, pharmacology and treat diseases by the methods of traditional medicine or by medicine handed down from ancestors and all are licensed by the Ministry of Health or Department of Health are made medical examination and treatment at the medical facilities of state, collectives and private sectors.
Article 36. Responsibilities of the physicians
1 - Physicians are responsible for medical examination and treatment, and instructions on the methods of disease prevention, self-healing for patients; and must be ethical, have a sense of responsibility dedicated to cure the sick.
2 - The new remedies, new treatment methods must be inspected to verify by the Ministry of Health or Department of Health along with the Traditional Medicine Association of the same level are applied to the medical examination and treatment for people.
3 - Prohibited the use of the forms of superstition in the medical examination and treatment.
Article 37. Assistance and protection for Physicians
1 - The State guarantees the copyright for the physicians on the dissemination of their effective remedies, herbs and precious drugs, traditional methods of treatment.
2 - Everyone has a responsibility to help and protect physicians and as well as for doctors under the provisions of Article 26 of this Law.
Chapter 6:
PREVENTION AND TREATMENT OF DISEASE
Article 38. Management of production, circulation, export, import of drugs and drug materials.
1 - The Ministry of Health unifies the management of production, circulation, export and import of drugs and raw materials to make drugs, organization of the sale and supply of essential drugs in the prevention and treatment of disease for people.
2 - The facilities of the State, collectives and private sectors permited by the competent health agencies are produced, circulated, exported and imported drugs, raw materials to make drugs and are only entitled to produce, circulate, export or import drugs and drug materials as prescribed by the Ministry of Health.
3 - People with professional degrees in medicine and be issued by the Ministry of Health or Department of Health are allowed to practice medicine.
4 - The new drugs must be inspected and certified by the Health Ministry or the Health Department on effect of medical prevention and treatment, ensuring the safety for the patients may be put into production, circulation, export, import.
Article 39. Management of poisons, drugs and substances easy to cause addiction, excitement, mental inhibition
1 - The highly toxic drugs, drugs and substances easy to cause addiction, excitement, mental inhibition are only used for psychiatric treatment and scientific research.
2 – The Ministry of Health shall prescribe the regime of production, circulation, preservation, use, and storage of drugs and substances prescribed in Clause 1 of this Article.
Article 40. Drug quality
1 - Drugs put into circulation and use must be ensured the State quality standards and safety for users.
2 - Prohibited the production and circulation of counterfeit drugs, drugs not guaranteeing the quality standards of the State.
Chapter 7:
HEALTH PROTECTION FOR THE ELDER, INVALIDS, SICK SOLDIERS, DISABLED AND ETHNIC MINORITY PEOPLE
Article 41. Health protection for the elder, invalids, sick soldiers, disabled
1 - The elder, invalids, sick soldiers and the disabled are given priority in medical examination treatment, to be created favorable conditions to contribute to society in accordance with their own health.
2 - Ministry of Health, Sport General Department guides the method to do exercise, of rest and of recreation to prevent, combat diseases of the elders.
Article 42. Health Protection for ethnic minority peoples
1 - The State reserves adequate budget to strengthen and expand the health network of medical examination, treatment for people of ethnic minorities, particularly the medical facilities in mountainous areas, remote areas.
2 – The State has appropriate treatment regime for medical officials working in the highlands, remote areas.
3 - The Council of Ministers is responsible for ensuring adequate drugs to prevent and treat malaria, goiter for the areas specified in clause 1 of this Article.
4 - People's Committees at all levels, the concerned branches and the social organizations are responsible for hygiene dissemination and education, building a civilized lifestyle and new culture for people of ethnic minorities.
Chapter 8:
IMPLEMENTATION OF FAMILY PLAN AND HEALTH PROTECTION FOR WOMEN, CHILDREN
Article 43. Implementation of family plan
1 - Everyone is responsible for conducting family plan, has the right to select birth control measures according to expectations. Every couple should have only one or two children.
2 - The State shall adopt policies and measures to encourage and create necessary conditions for people to conduct family plan. The obstetric specialty facilities of the State, collectives, and private sectors must implement the requirements of people on the selection of measures of childbearing planned.
3 - The agencies of health, culture, education, mass media and social organizations shall disseminate, educate knowledge of population and family plan for people.
4 - Prohibited the interference or enforcement in the implementation of family plan.
Article 44. The rights of women to be served medical examination and treatment of gynaecological diseases and abortion
1 - Women have the right of abortion according to expectations, to be served the medical examination and treatment of gynaecological diseases, to be monitored the health during pregnancy, to be served medicare as childbearing in the health facilities.
2 – The Ministry of Health is responsible for strengthening and development of networks of neonatal and obstetric specialty in the medical facilities to ensure health services for women.
3 - Strictly prohibit medical facilities and individuals to do the abortion operation, to remove the IUD without permits issued by the Ministry of Health or Health Department level.
Article 45. Use of female labor
1 - Organizations and individuals using female employees must observe the regulations on health protection for women, ensuring the regime for pregnant women, childbearing, child nursing and applying measures birth plans.
2 – Not to use female employees in the hard and hazardous works. The Ministry of Health, Ministry of Labour - Invalids and Social Affairs shall provide the list of hard and hazardous works.
Article 46. Protection of children's health
1 - Children are managed their health, are vaccinated to prevent illness, epidemic, served medical examination and treatment by the basis medical agencies.
2 - The health sector is responsible for development, strengthening of the network of health care and protection of children’ health.
3 - Parents and child-rearing people are responsible for implementation of the provisions on health examination and vaccinations under the plan of medical facilities, caring children as they are illness and making the decision of the physician in medical examinations and treatment for children.
Article 47. Care for children with disabilities.
The Ministry of Health, Ministry of Labour - Invalids and Social Affairs, Ministry of Education are responsible for organizing the care and application of rehabilitation measures for children with disabilities.
Chapter 9:
STATE INSPECTORATE OF HEALTH
Article 48. The organization and powers of the State Inspectors of Health
1 - The State Inspectorate on health of health sector include: sanitary inspector, inspector of examination and treatment and pharmaceutical inspector.
Council of Ministers defines the State inspection organizations of health sector.
2 - The State Inspectors on health have the right to inspect and examine the implementation of the provisions of law on the protection of people's health, hygiene, prevention and combat of epidemic, medical examination and treatment and medicine; decide on administrative sanctions; make the decisions to temporarily suspend or terminate operation of the units and individuals who commit violations and take responsibility for their decisions.
3 - The State organizations, social organizations, collectives, private sectors and all citizens in which are being conducted the inspection must report the situation and provide written documentation of the facts relevant to the content of inspection within the time limit prescribed and appoint officials to participate in the inspection team when necessary.
Article 49. Sanitary inspectors
Sanitary inspectors inspect the observance of sanitary laws of the State organizations, social organizations, collectives, private sectors and all citizens.
Article 50. Inspectors of medical examination and treatment
To inspect medical examination and treatment, inspect the observance of professional and professional skill rules and health technique charter of the facilities of medical examination and treatment of state, collectives and private sector.
Article 51. Pharmaceutical Inspectors
Pharmaceutical inspectors inspect the observance of pharmaceutical professional skill, professional rules in production, circulation, export and import of drugs and drug materials of the facilities of state, collectives and private sector.
Chapter 10:
REWARDS AND HANDLING OF VIOLATIONS
Article 52. Reward
Localities, units and individuals that record achievements in the protection of people's health are rewarded by the State of matter and spirit.
Dotors, physicians, pharmacists and other medical staffs who have made numerous contributions in the protection of people's health, to be qualified, skilled technical expertise, ethics, trusted by the people and colleagues are considered to award the honors of the State.
Article 53. Handling of violations
Those who have the following acts shall, depending on the degree of seriousness be disciplined, administratively handled or examined for penal liability.
1 - Violating the regulations on hygiene in public places, prevention, and combat of epidemics diseases.
2 - Violating the regulations on medical examination and treatment, manufacture and sale of drugs.
3 - Violating the regulations on hygiene of staple, food, labor sanitation and other provisions of law to protect people's health.
Apart form the above processes, people who commit acts of violation specified at Points 1, 2 and 3 of this Article, if causing damage to health, life or property of others must compensate damage in accordance with the law provisions.
Chapter 11:
FINAL PROVISIONS
Article 54. The previous regulations contrary to this Law are hereby annulled.
Article 55. The Council of Ministers shall specify the implementation of this Law.
This Law was passed by VIII National Assembly of Socialist Republic of Vietnam, 5th session on June 30, 1989.
Vo Chi Cong
(Signed)
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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21-LCT/HDNN8
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Luật
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Quốc hội
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Võ Chí Công
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30/06/1989
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11/07/1989
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE MINISTRY OF EDUCATION
SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness
No. : 08/TT
Hanoi, March 21, 1988
CIRCULAR
GUIDANCE ON COMMENDATION AND DISCIPLINARY ACTIONS APPLIED TO SCHOOL STUDENTS
To:
- Educational Institutions – Schools under the Ministry of Education.
The Ministry of Education has defined rights, duties of students, commendation and school disciplinary actions applied to students from grades 1 to 12 (hereinafter referred to as students) and also provide specific guidance on commendation and disciplinary actions applied to students as follows:
I. Purposes, meanings and principles of implementing commendation and disciplinary actions on students given commendation and students facing disciplinary actions respectively:
1. Commendation and disciplinary actions applied to students are one of the important educational measures in schools, aimed at:
- Encouraging students to strive for advancement and follow good role-models for improvement and fulfillment of themselves.
- Preventing the spread of mischief, improper conducts and misleading education to help students strive for becoming good role-models.
- Fostering their self-awareness of the regulations on rights, duties of their own to heighten a sense of contribution to the construction of orders and disciplines in schools.
2. Proper implementation of commendation and disciplinary actions on students shall make a positive contribution to the consolidation and development of “Two goods” emulation movement in schools, gradually achieving targets of training set by schools and individual grades. To accomplish the goals as such, the following principles should be ensured:
a) Being accurate, objective, impartial, unprejudiced, not narrow-minded and unsystematic.
b) Being democratic, equal and sensible toward students
c) Taking education as primary and at the same time strictly keeping discipline. Bringing into play strong points, cultivating positive factors taken as foundations for overcoming shortcomings and negative expressions.
d) Taking appropriate measures punctually.
e) Creating in schools and in society proper public opinions, being in favor of goods and against wrongs.
f) Having a plan to monitor progress and correction made by mischievous students.
g) Commendation should be accompanied with proper rewarding.
3. Students subject to commendation and disciplinary actions:
Those subject to commendation are model students who fulfill duties as stipulated by the Ministry. Those subject to disciplinary actions are students who commit relatively serious mistakes, violating rules on duties of students as stipulated by the Ministry.
II. Form of commendation:
The Ministry shall instruct the implementation of commendation as follows:
1. Commendation before class
Those who do good in this area or the other during the execution of their duties in each month or term through the following expressions shall be given commendation before class.
a) Showing good expressions and moral behaviors as follows:
Be enthusiastic about helping friends in learning and daily activities, have a spirit in fighting negative expressions in learning and daily activities; actively participate in the protection of social order and law, return dropped objects to their owners, have good attitudes toward people. . .
b) Show good expressions in learning such as:
Achieve good school performance outcomes in a month (All exams conducted orally, on a 15-minute, 45-minute basis achieve 7 points and over)
- Be hard-working, overcome difficulties to move forward and show a great progress in learning. ,
- Be enthusiastic about helping students with poor performance outcomes to better themselves and achieve an obvious progress in learning. . .
c) Show good expressions in assigned labor such as:
Actively take part and complete assignments successfully in labor activities organized by schools (punctuality, adequate tools, sense of discipline and productivity in labor. . . )
d) Actively take part and accomplish good results in activities of performance, sports, construction of team, class collectives. . .
In addition to good expressions above, any student who shows a similar good expression in other areas shall be considered for being moved up a class.
Commendation before class shall be carried out by head teachers on behalf of headmasters with praises being given.
As for primary students, in addition to aforementioned manner of commendation before class, the two manners below are also applied:
* Commendation paper:
1 st and 2 nd graders shall be awarded commendation papers if they can show either of the following strong points:
- Be studious and have achieved great outcomes in academic activity.
- Be well-behaved toward teachers and people in families and society.
- Show quick progress in learning, correction of shortcomings in behaviors and lifestyles.
Such manner of commendation shall be considered and executed on a monthly basis, and shall be informed to headmasters for monitoring.
* Enter names on the class' roll of honor
Name of any primary student who strives to make either of the following achievements shall be entered on the class’ roll of honor:
- Make remarkable achievements in all educational areas
- Make outstanding achievements worthy of a class role model in each educational area. . . Such manner of commendation shall be considered and executed on a two-month basis, from 3 to 5 students each, and shall be informed to headmasters for monitoring.
2. Commendation before school:
For those who do good in this area or the other during the execution of their duties at higher level deserving to be shown as a good example before school, head teachers shall be responsible for sending proposal to headmasters for commendation before school as a way to exert general effects.
Commendation before school shall be decided and implemented by headmasters Manner of commendation can be done by either praises or praises and commendation certificate combined.
3. Titles “Good students” shall be awarded to those who have strived to accomplish good and over grades in educational areas after each term or school year according to applicable regulations on grading in all educational areas.
Head teachers shall be responsible for making a list of students who have achieved “Good students” titles and reporting to headmasters for decision and awarding commendation certificates. Depending on financial resources, reward presentation ceremony can be organized before class or school.
4. Titles “Good students” shall be awarded to those who have strived to accomplish excellent grades in morality, labor, physical education, sanitation, military practices and awareness under applicable regulations on grading in all educational areas.
Head teachers shall be responsible for making a list of students who have achieved “Excellent students” titles and reporting to headmasters for decision and awarding commendation certificates. Depending on financial resources, reward presentation ceremony can be organized before class or school.
5. Entered on the school’s roll of honor shall be names of students who have shown their exceptional abilities in learning, moral improvement and practice, labor activities, physical education, and students who are specially active in participating in collective activities and social works. . .at all levels, including primary level. Such students shall be listed and reported by head teachers to headmasters for decision about commendation and their names shall be entered on the school’s roll of honor at the end of term and school year.
6. Titles “Exceptional students” shall be awarded to students who have repeatedly achieved “Good students” titles at the end of each level or individual grades. Such students shall be listed and reported by head teachers to headmasters and educational council for selection and submitting proposal to educational management agencies at higher level for awarding commendation certificate or rewards. Exceptional students from lower secondary schools shall be collected, classified and selected by the Educational Office. Exceptional students from upper secondary schools shall be collected, classified and selected by upper secondary schools themselves and submitted to the Services of Education for decision about commendation for exceptional titles and at the same time awarding commendation certificate or rewards.
7. Special commendation:
a) Students who achieve excellence in excellent student selection examinations in cultural subjects at district, municipal, provincial and national levels shall be considered for special commendation under the following regulations:
- Students who win prizes at district level shall be commended and granted rewards by the Educational Office of the district.
- Students who win prizes at municipal and provincial levels shall be awarded commendation certificate by the Services of Education and rewards by people’s committees of districts. . .
- Students who win prizes at national level shall be awarded commendation certificate by the Ministry of Education and rewards by municipal and provincial people’s committees under the Center.
- Students in the national student team taking part and wining championships in international examinations for excellent students shall be awarded commendation certificate and rewards by the Ministry of Education.
b) Students who win sports contests at “National Phu Dong Sports Festival” and technical labor contests at “Technical Craftsmanship Competition” at district and provincial levels shall be awarded commendation certificate and rewards by the Services of Education.
c) Students with special or unexpected achievements (show bravery in rescuing people in danger, struggling to protect national properties, fighting misconduct, national disaster, epidemics, have some invention in science and technology. . . ), depending on meaning and extent of impact, headmasters shall grant commendation or send proposal to educational management agencies (Educational Office, the Services of Education and Ministry of Education) for commendation.
III. Disciplinary actions:
According to the Ministry’s regulations, disciplinary actions on students committing violations while exercising their rights and duties take the following forms:
1. Giving reprimands before class
Students committing either of the following violations while exercising school rules, rights and duties of their own shall be reprimanded before class:
- Be absent from school three classes and over in a month without leave
- Fail to do homework or lesson preparation three times and over in a month.
- Be absent from school three classes and over in a month without leave
- Use bad language, gambling (betting on the last two numbers of the first prize (national lottery), smoking cigarettes. . .
- Commit the following violations only once but its effect is exerted powerfully upon the school’s comprehensive education: cheating in exams, having uncultivated attitudes or immoral behaviors toward teachers, parents, friends and people around, causing disunity among class groups and teams, screening or conniving in wrongdoings by friends, failing to report such wrongdoings to headmasters for punctually taking appropriate prevention measures or reviewing other violations of similar nature and adverse effects.
- Decision about giving reprimands before class shall be made by head teachers after consulting with officers of Communist youth branch and class monitors and shall be announced early in weekly class activities, then informed to headmasters for monitoring.
2. Giving reprimands before the student disciplinary panel:
- Students committing either of the following violations while exercising school rules, rights and duties of their own shall be reprimanded before the student disciplinary panel:
- Committing one of the previously reprimanded violations repeatedly
- Commit the following violations only once but its effect is exerted powerfully upon the school’s comprehensive education: pilferage of books, pens, money, jewelry. . . from friends, teachers, parents, and people around, being fond of picking up a quarrel and exchanging blows with friends and people outside of schools, spreading bad public opinions and untruthful rumors; joining propaganda about superstition; listening, watching or spreading music, movies or reading materials containing negative contents; or commit other violations of similar nature and adverse effects.
- In case students commit such violations but their effects are not so powerful as to be reprimanded before the student disciplinary panel as repeating one of the previously reprimanded violations, head teachers may consult with officers of youth branch, class monitors for sending proposal to headmasters for decision about reprimands before class. Head teachers need to inform the class and parents about the violation for cooperation.
- Giving reprimands before the student disciplinary panel shall be considered and proposed by the student disciplinary panel to headmaster for decision and execution.
3. Warning before school:
- Students committing either of the following violations while exercising school rules, rights and duties of their own shall be given warning before school by the student disciplinary panel:
- Not only fail to correct the misbehavior previously reprimanded by the student disciplinary panel but repeat it.
- Repeatedly play truant, cut classes, evade work or cheat in exams.
- Commit violations only once but its adverse effect is all-pervasive such as stealing or robbery inside and outside of schools; have rude words or misbehaviors toward teachers; tease or have uncivil words toward women and foreigners; show obvious signs of disturbing order and security; get detained by police; participate organized exchanges of blows or commit other violations of similar nature and adverse effect.
- Disciplinary action as warning before school shall be proposed by the student disciplinary panel. Decision and execution shall be made by headmasters. Such disciplinary action shall be recorded in students' school reports and informed to parents.
4. One-week expulsion from school
- As for students who commit misbehaviors previously reprimanded before school but show no remorse or correction exerting negative effects upon other students; or commit violations for the first time but their adverse effects are found serious, hurting reputation, honor of schools, teachers and students. . . such as theft, mugging, ignite and organize exchanges of blows inflicting injuries on others,. . .or commit other violations of similar nature and effect, the student disciplinary panel shall consider a proposal to headmasters for decision and disciplinary actions, and at the same time report to educational management agencies for monitoring.
- This form of disciplinary action shall be recorded in students' school reports and informed to parents for cooperation.
- During the expulsion, if students show signs of real remorse or deep acknowledgement of their misbehaviors and prove a great determination to make correction for advancement, headmasters may consider and decide their return to school after the expulsion. Such expulsion period shall be considered as leave of absence if their return to school is accepted.
- During such one-week expulsion, if students not only show no sign of real remorse for their misbehaviors and determination to make correction but also commit more violations, the student disciplinary panel shall consider to send proposal to headmasters for one-year expulsion.
- Concerned families shall be responsible for managing and educating such students during the expulsion.
5. One-year expulsion from school
- Students who commit either of the following violations shall be suggested by the student disciplinary panel to headmasters for one-year expulsion from school, shall be recorded in school reports and informed to families, and at the same time shall be delivered to families, youth unions and local authorities for further education.
- Not only show no sign of real remorse and determination to correct misbehaviors resulting in one-week expulsion but also commit more violations,
- Commit a serious violation only once but such action is found intentional and self-motivated, resulting in pervasive adverse effects and posing danger to social properties and human lives such as participation in organized theft, mugging, debauchery and reactionary. . .use of weapons (knives, bayonets, guns, grenades. . . ), organize exchanges of blows inflicting injuries on others, get detained by police for criminal acts outside of school or commit other violations of similar nature and effect.
- After a penalty for one-year expulsion takes effect, the school has to formulate adequate documentation and report immediately to Educational Office (with respect to lower secondary school students) and to the Services of Education (with respect to upper secondary school students) for monitoring.
- After one year of expulsion is served, if finding that conditions of age are met and returning to school is desirable, punished students may submit application to old school for consideration and such application must be accompanied by confirmations from local authorities (wards, communes, hamlets. . . ) on the student's self-improvement, and undertakings from families on educating such students.
- In addition to forms of discipline mentioned above, to ensure pedagogy and earnestness of teaching and learning in classes, subject teachers may temporarily suspend learning and report to headmasters on any student who commits either of the following violations: have rude words or discourteous attitudes toward teachers; ignite exchanges of blows with other classmates; cause disturbance in class despite being advised and warned by subject teachers. . .such students shall be forced out of class until the following period.
IV. Commendation and disciplinary actions
A. Documentation of commendation
1. Documentation of students who are granted commendation certificate and recorded in the class’ roll of honor (with respect to primary school students) shall include a list of students being granted commendation certificate and entered on the class' roll of honor by the head teacher.
2. Documentation of students praised before class include:
- Head teachers’ proposals
- Headmaster’s comments and decision
3. Documentation of students praised before school include:
- Head teacher’s summary report on students’ achievements and proposals to headmaster for commendation
- Papers, documents related to achievements made by students proposed for commendation comprise an official dispatch from units, agencies or unions to the school on the student’s achievement in protection of national properties or some commendation certificate or a press article depicting such student’s honest deed of returning dropped object to its owner. . . )
- Headmaster’s commendation decision accompanied by a list of students subject to commendation.
4. Documentation of students achieving titles “Good students”, “Excellent students”, and students whose names are entered on the class’ roll of honor comprise:
- List of students achieving titles “Good students” and “Excellent students” (according to standards regulated by the Ministry of Education) after each term or school year.
- List of students on the class’s honor proposed to headmasters for decision about form of commendation accompanied by head teacher’s comments.
- Headmaster’s commendation decision accompanied by a list of commended student mentioned above
5. Documentation of students achieving titles “Exceptional students” comprise:
- List of students achieving title “Exceptional students” (according to standards regulated by the Ministry of Education) to be selected and proposed by headmasters and educational council to educational management agencies for commendation.
- Minutes of selection and educational council’s proposing comments to higher levels
- Educational management agency’s commendation decision accompanied by a list of commended student
6. Documentation of students subject to special commendation:
a) Students wining prizes in excellent student selection examinations comprise:
- List of students who have won prizes in excellent student selection examinations at district, municipal, provincial, special zone and national levels on cultural subjects, physical educations at “National Phu Dong Sports Festival”, and contests in ergonomics at “Technical Craftsmanship Competition” of all levels.
- Commendation decision issued by educational management agency of all levels and reward granting decision (if any) by authorities of all levels.
b) Students participating in international examinations comprise:
- List of students from the national excellent student team participating in international examinations.
- The Ministry of Education’s commendation decision
c) Students making special and unexpected achievements comprise:
* Commendation at school:
- List of students making special and unexpected achievements accompanied by particular achievement table of individual students.
- Headmaster’s commendation decision
* Commendation from upper level:
- List of students making special or unexpected achievements (accompanied by particular achievement table of individual students) to be proposed to educational management agencies for commendation.
- Educational management agency’s commendation decision
B. Documentation of disciplinary actions (Forms of disciplinary actions from reprimands before the student disciplinary panel and over)
1. When finding any student committing misbehaviors from level of reprimands before the student disciplinary panel and over, head teacher should document and report immediately to headmaster and the student disciplinary panel for inspection and enforcement of disciplinary actions. Doing such shall help exert strong influence on all students in general and at the same time report should be sent to concerned parents for cooperation with the school in educating and correcting their misbehaviors.
Documentation of students committing such misbehavior includes:
- Admission made by misbehaving students (after consulting with collectives of the class where misbehaving students learn) accompanied by materials or exhibits (if any)
2. Consideration for disciplinary actions
- Based on considerations and proposals for disciplinary actions made by head teacher and depending on nature and severity of violations committed by individual students, the student disciplinary panel shall decide forms of discipline as appropriate (from level of reprimands before the student disciplinary panel and over).
- The student disciplinary panel comprises headmasters, representatives of Communist Youth Union of Ho Chi Minh City or Ho Chi Minh Young Pioneer Organization of the school, head teachers of misbehaving students and two teachers having experience in education and being appointed as executive members of the panel by council of ethical education.
- Headmasters shall chair meetings with the student disciplinary panel and a private meeting shall be held among members of the panel for voting on a discipline. Method of voting is secret ballot. Parents and misbehaving students shall be invited to the meeting held by the student disciplinary panel for being informed of misbehaviors committed by such students. No one is invited during a private meeting to vote on a discipline. As for expulsion, at least two third of the vote is in favor. As for complicated cases, they should be brought before the school’s educational council for discussion and solution before the student disciplinary panel sits down and votes.
- Minutes of private meeting shall be delivered immediately to the headmaster for examination and decision about a form of discipline. If the headmaster does not agree with the student disciplinary panel, the Office of Education (lower secondary level), or the Services of Education (upper secondary level) should be reported immediately for consideration, decision and the result should be informed immediately to misbehaving students and parents.
3. Time limit for consideration of discipline
- On a monthly, end-of-term, end-of-school year basis.
- Unexpected consideration may be carried out to enforce discipline punctually to improve education in general and quickly restrict adverse effect of the misbehavior.
4. Claimant’s rights of students and parents
Students and parents are entitled to claim their own disciplines from the form of warning before school and over within a period of one week since notice of discipline is released.
a) If forms of discipline such as warning before school or one-week expulsion are given, lodge a complaint with the school. Headmaster shall review the case and reply immediately to the person concerned within a period of three days since the complaint is received. Upon finding any mistake arising from discussion for discipline, the headmaster shall convene the student disciplinary panel immediately for discussion and consideration of the case as appropriate within a period of one week since the complaint is received.
b) If form of one-year expulsion is given, complaints can be lodged with the school or educational management agency (Office of Education with respect to primary and lower secondary level; the Services of Education with respect to upper secondary level) The headmaster shall review the case and reply immediately to the person concerned within a period of three days since the complaint is received. Upon finding any mistake arising from discussion for disciplinary action, the headmaster shall convene the student disciplinary panel immediately for discussion and consideration of the case as appropriate within a period of one week since the complaint is received.
Upon receipt of the complaint lodged by students and parents, the Office, Services of Education shall review the case and reply immediately to the person concerned within a period of fifteen days at the latest since the complaint is received.
V. Helping disciplined students to correct misbehaviors, get mitigation or clearance of punishment
As for disciplined students, head teachers, subject teachers, Ho Chi Minh Young Pioneer Organization, Communist Youth Union of Ho Chi Minh City and class collectives shall be responsible for keeping a close watch on and actively helping train and correct their misbehaviors for advancement.
1. At the end of school year, the student disciplinary panel, under control of the headmaster, shall hold a meeting to decide mitigation or clearance of punishment for disciplined students in a year if such students show signs of real remorse and advancement. Students and parents are invited to such meetings except private meetings held by the student disciplinary panel to vote on clearance of disciplinary action. Such voting shall be carried out by means of secret ballot and under the majority rule. Decision about mitigation or clearance of punishment shall be announced at the place where the disciplinary action is enforced and be informed immediately to students and parents.
Documentation for mitigation or clearance of punishment
a) Records of disciplined students’ progress in correcting misbehaviors and level of advancement
b) Proposals for mitigation or clearance of punishment made by head teacher after consulting with class collectives of disciplined students.
2. Making disciplinary comments on school reports shall be done at the end of school year after the student disciplinary panel has held a meeting to decide mitigation or clearance of punishment for disciplined students and record a new disciplinary action (in case of mitigation) or no disciplinary action at all (in case of clearance). Only disciplinary actions from warning before school and over are recorded in school reports.
Only students disciplined from warning before school and over are considered for clearance by the student disciplinary panel. For example:
Student A, in the first term, committed a violation and was disciplined before school by the student disciplinary panel. At the end of the school year, after striving to correct his/her misbehaviors for advancement, the disciplinary action incurred by such student was mitigated to reprimands before the student disciplinary panel. Thus, the disciplinary action as warning before school was not recorded in school reports.
Decisions to mitigate or clear disciplinary action with respect to disciplined students shall be informed to student parents for cooperation in encouraging students to continue advancement.
VI. Documentation of commendation, disciplinary actions, mitigation or clearance of punishment
1. Documentation of commendation
- Documentation of students granted commendation certificates, whose names entered on the class’ roll of honor, or commended before class shall be kept in the class’ record book during their learning in primary schools.
- Documentation of students commended before school, granted title “Good student, ” or “Excellent students”, “Exceptional students”, students whose names are entered on the school' roll of honor, students granted special commendation. . . .shall be kept permanently in school.
2. Documentation of disciplinary actions, mitigation or clearance of punishment should be appropriately and permanently protected (with respect to students disciplined by the student disciplinary panel) and kept in the class’ record book during their learning in school (with respect to students reprimanded before class by head teachers)
The foregoing is a guidance on commendation and disciplinary actions in schools which is uniform across the country from the school year 1987-1988. Previous documents, guidance which go against this guiding circular shall be abrogated.
All educational establishments shall be responsible for spreading this circular quickly and adequately to schools for execution.
PP THE MINISTER OF EDUCATION DEPUTY MINISTER Nghiem Chuong Chau
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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08/TT
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Thông tư
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Bộ Giáo dục
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Nghiêm Chưởng Châu
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21/03/1988
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21/03/1988
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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THE GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No. 31-CP
Hanoi, January 23 rd, 1981
DECREE
ON INNOVATIONS TO EFFECT TECHNICAL IMPROVEMENT AND RATIONALIZATION IN PRODUCTION AND ON INVENTIONS
(Promulgated by Government Decree No 31-CP of January 23, 1981 as amended by Government Decree No 84-HDBT of March 20, 1990 of the Council of Ministers) Considering that innovation to effect technical improvement and rationalization in production (shortly referred to as innovations) and inventions which, under this Ordinance, mean the result of the scientific - technical creative work of the workers in their capacity as the masters of communities, have an effect on the promotion of the technological progress and have great value for the benefit of the economy, society so as to contribute to the development of national economy, to strengthen national defense and to raise the standard of living of the people; Desirous to encourage and assist the nationals in making and applying innovations, inventions to organize and manage in a planned manner the administration of activities relating to innovations, inventions and, in close collaboration with social organizations, in particular with the Labour Union and the Ho Chi Minh of Communist Youth, to organize and develop the mass movement of making and applying innovations, inventions; Desirous further to protect the right of innovators, inventors; This Ordinance defines "innovation" and "invention"; lays down the right of creators and persons who apply innovations, inventions; the responsibility and competence of state organizations, enterprises, socialist economic organizations and persons in relation to the making and application of innovations, inventions.
Chapter I
INNOVATIONS TO EFFECT TECHNICAL IMPROVEMENT AND RATIONALIZATION IN PRODUCTION
Part A: DEFINITIONS
Section 1
(1) Under this Ordinance, "innovation to effect technical improvement and rationalization in production" means a technical solution, or solution in relation to the organization of the production, which is new, applicable and practically useful to the collective organization, unit (including economic unit) with which is registered.
(2) The subject matter of an innovation may be the improvement of:
a- engineering designs, equipment's, working instruments, products designed project or structure of construction etc. . . b- the characteristics, use or composition of raw materials, materials, products, etc. . . . c- methods for research or designing processes, the building of constructions, planing or breading techniques methods for the prevention, treatment of diseases, etc. . . d- the organization of production for rationalizing the use of manpower, working instrument, raw materials, energy and finial resources.
Section 2
A solution shall be considered new if, prior to the date of registration, it has not been : - applied by the organization, unit or put in its plan as to be applied;
- made known in written form by higher administration or disseminated in technical literature published by locality or branch concerned in such manner that the realization thereof could be made;
- confirmed directly by organization, unit or by the higher administration as imposed obligations, like standards, rules, norms, etc. . .
- identical with any earlier of registered solution.
Section 3
A solution shall be considered applicable to the organization, enterprise with which it is filed if it is appropriate to solve a problem arising in the production or performance of activities and realizable, under prevailing economic, technical conditions, in that organization, unit.
Section 4
A solution shall be considered as being practically useful if its application to the production or performance of activities results in an increased economic, technical effectiveness or improves working, living conditions, health assurance or security in favor of workers.
Section 5
In respect of solutions made by technical staff or administrative cadres, such a solution shall be considered innovation if it has a great economic, technical value and in applicable extensively.
Part B: FILING APPLICATION, EXAMINATION AND CERTIFICATE GRANTING
Section 6
(1) The application for a certificate for innovation shall be drawn up by the innovator and filed with the organization, unit where he works or with any other organization, enterprise where he finds that his innovation can be applied.
(2) Where several persons have filed, independently of each other, the applications for the solutions the subject matter of which is the same, the person who has filed the earliest application shall be considered innovator.
Section 7
(1) The organization, unit having received the application for a certificate for innovation shall record it in application book of innovations and notify the applicant accordingly.
(2) Within a period of one month counted from the date of the receipt of the application for a certificate innovation, the organization, unit shall examine it and shall decide whether or not to recognize the claimed solution as an innovation.
(3) Where, for the making of the decision on the recognition of the solution as an innovation, the accomplishment of experimentation or testing is required, the above said period may be extended as long as the experimentation or testing requires and the applicant shall be notified thereof.
Section 8
(1) When having decided to recognize the claimed solution as an innovation, the head of the organization, unit shall grant the innovator the certificate for innovation and notify the organization, unit thereof. The certificate for innovation shall be valid within the organization, unit which has granted it.
(2) Where several persons have jointly made a solution being considered innovation (hereinafter referred to as joint innovator) each of them shall be granted the certificate for innovation where all the joint innovators are named.
(3) The innovator shall enjoy the rights provided for in Chapter IV of this Ordinance.
(4) When having refused to recognize the claimed solution as an innovation the organization, unit shall have the obligation to notify the applicant of the reason therefor and shall not have the right to apply that solution.
(5) The procedure of filing applications, the examination, the grant of certificates for innovation shall be laid down by the State Committee for Science and Technology.
Section 9
When examining the application for a certificate for innovation of the organization, unit finds that the claimed solution is a patentable invention it shall take, instantly, appropriate measures for filing the patent application for that solution in accordance with the provisions laid down in Chapter II, Part C of this Ordinance.
Chapter II
INVENTIONS
Part A: DEFINITIONS
Section 10
"Invention" means a technical solution which, in comparison with the available world technology, is new, involves an inventive step and is applicable to economic-social fields.
Section 11
(1) A technical solution shall be considered new, in comparison with the available world technology, if, prior to the priority date of the patent application, it has been neither identical with any of technical solutions described in patent applications or in applications for paten for utility solution having an earlier priority date nor disclosed to the public, in the country or aboard, in any form in such manner that the realization thereof could be made.
(2) A technical solution shall be considered as involving an inventive step if it is the result of creative work and could not be obviously deducible from the prior art available at the priority date of the patent application.
(3) A technical solution shall be considered applicable if the subject matter thereof can be made or used under prevailing or future technical conditions.
Section 12
The subject matter of an invention may be device, a process, a substance or the use of known device, process substance for performing a new function.
Section 13
The following shall not be considered invention: - scientific principles;
- economic management methods and systems;
- educational, teaching, training methods and systems;
- designs and planning schemes for constructions, projects for regional development and planning;
- solution concerning only the shape of articles, intended to create an aesthetic impression;
- signs, diagrams, symbols;
- computer programs, integrate circuits;
- plant or animal varieties, microorganisms;
- processes for the prevention, diagnosis, treatment of diseases in human beings, animals or plants;
- solution which are contrary to social interests, public order, principle of humanity or socialist morality
Part B. PROTECTION OF INVENTIONS
Section 14
The State protects inventions by patents. Patents shall be granted to the applicants by the National Office on Inventions.
The patent shall recognize the technical solution as an invention, the owner of the patent and his ownership right to the invention, the inventor or his right.
Section 15
(1) The term of validity of a patent shall be fifteen years counted from the priority date of the patent application.
(2) A patent shall lapse before the expiration of the term in the following cases:
- the owner of the patent submits to the National Office on Inventions a written declaration for the surrender of the patent;
- the owner of the patent does not pay the prescribed annual maintenance fee.
Section 16
The scope of the protection of an invention shall be determined by the claim or claims whereas the description of the invention shall serve only the purpose of interpreting the claims.
Section 17
(1) Within the term of validity of the patent, the owner of the patent shall have the exclusive right to work the invention, to assign the ownership right to the invention of the right to work the invention to other organization or person.
(2) For the purpose of this Ordinance, "to work" an invention means:
- making a product when the patent has been granted in respect of that product;
- using, importing, advertising or distributing a product when the patent has been granted in respect of the product;
- using a process when the patent has been granted in respect of that process.
(3) The assignment of the ownership right to, or the right to work an invention as provided in Subsection 17 (1) shall be effected by means of a written contract in accordance with the provisions laid down by Ordinance on Licensing promulgated by Government Decree No 201 – HDBT of December 28, 1988 of the Council of Ministers.
Section 18
(1) Within the term of validity of the paten, any of the act referred to in Subsection 17(2) if performed by any organization, unit, without the authorization of the owner of the patent, shall be deemed as infringement of the ownership of the right to the invention of the owner of the patent.
(2) The following acts shall not be deemed as infringement of the right of the owner of the patent: - using the invention not for commercial purposes; - distributing or using a product which has been put on the market by the owner of the patent, the prior user as provided in Section 21, the assignee of the right to work the invention as provide in Section 22 or the authorized person in respect of the authorization granted by the Chairman of the State Committee for Science and Technology as provided in Section 20;
- using the invention on foreign transportation means which, in transit or temporarily, are on the territory of Vietnam provided that the invention is used exclusively for the operation of those means.
Section 19
The owner of the patent shall have the obligation to :
- work, or assign the right to work, the invention on the territory of Vietnam in accordance with the economic social needs of the country;
- pay the annual fee for maintaining the patent prescribed by the State Committee for Science and Technology;
- pay the inventor the royalty as provided in Chapter IV, part A of this Ordinance.
Section 20
(1) The Chairman of the State Committee for Science and Technology may grant the authorization for working a patented invention to any organization or person having made such request if:
a- after the period of three years counted from the date of the grant of the patent or four years counted from the priority date of the patent application, whichever period expires last, the invention is not worked or, having regard to the economic, social needs, insufficiently worked by the owner of the patent and the owner of the patent refuses, without justified grounds, the assignment of the right to work the invention to the requesting organization or person;
b- the working of the invention requires to work an other invention however the owner of the patent refuses, without justified grounds, the assignment of the right to work the invention to the requesting organization or person;
c- the working of the invention is found to be necessary to meet the requirement of national defense, security, public health or other vital public interests.
(2) The organization or person desiring the authorization for working an invention as provided in Paragraphs 20(1)(a), (b) shall file with the State Committee for Science and Technology the request wherein the needs to work the invention, the ability to work the invention and the benefit derivable from the working of the invention must be clarified and the fact that the owner of the patent has, without justified grounds, refused the assignment of the right to work the invention
must be proved.
(3) The organization or person having been authorized by the Chairman of the State Committee for Science and Technology for working a patented invention shall pay the owner of the patent an amount on the basis of agreement with the owner of the patent. In case no agreement has been reached on the payment, the organization or person authorized for working the invention and owner f the patent may request the court to settle the matter.
Section 21
Any organization which, or person who, prior to the priority date of the patent application was, or had made serious preparation for, working the solution described in the application, ndependently of the applicant, shall have the right to continue to work the invention despite the grant of the patent, except to enlarge the extent and volume of the application and to assign the right to work the invention to other organization or person.
Section 22
(1) The assignee of the ownership right to an invention shall, from the date of the registration of the assignment contract with the National Office on Inventions, have the rights that belongs to the former owner of the patent and assume the obligations that were incumbent on the former owner of the patent.
(2) The assignee of the right to work the invention shall have the right to request the owner of the patent to bring to court for trial of the infringement to the detriment of the right to work the invention. The said assignee shall, however, have the right to bring to court for trial if the owner of the patent has not fulfilled his request within period of three months counted from the date of the receipt of the request
Section 23
"Inventor" means a person who has made an invention by his creative work. Where an invention has been jointly made by several persons, they should be considered joint inventors. A person who has merely assisted in the making of an invention as far as technical, financial and management support are concerned or in the preparation, filing of the patent application shall not be considered joint inventor.
Section 24
The inventor shall have the right:
a- to be named as such in the patent and related published scientific, technical documents;
b- to be paid royalty by the owner of the patent as provided in
Chapter IV
PART A OF THIS ORDINANCE.
Section 25
Any organization which, or person who, has the ownership right to an invention may apply for protection of that invention abroad.
The filing of the patent application for an invention abroad shall be permitted only after the patent application for that invention has been filed in Vietnam and the applicant has received the notification of acceptance of application issued by the National Office on Inventions except the case where otherwise provided for in the international treaties to which Vietnam is party.
Section 26
(1) Foreign organization or persons may apply for protection of inventions in Vietnam and shall enjoy the rights provided for in this Ordinance in accordance with the international treaties to which Vietnam is a party or on the principle of reciprocity.
(2) Organizations which, or person who, are not domiciled or have neither functioning establishment nor agency in Vietnam shall effect the procedures of protection of inventions through industrial property agent.
Part C: FILING OF PATENT APPLICATION
Section 27
(1) The right to file the patent application shall belong to the inventor or his successor in title.
(2) In respect of inventions made in execution of commissions within the filed of activity of state organizations, state or collective economic establishments (hereinafter referred to as organization, unit), the right to file the patent application shall belong to the organization. unit employing the inventor of the invention has been made within the responsibility of the inventor or the employing organization, unit has invested capital and equipment for the making of the invention (hereinafter referred to as service invention). The right to file the patent application shall, however, belong to the inventor, within a period of two months counted from the date at which the inventor submitted to the employing organization, unit his report on the fact that the solution he made could be protected as an invention, the employing organization, unit has not filed the patent application.
(3) Where an invention has been made in execution of a contract for performance of scientific research or technical development, the right to file the patent application shall belong, in the party having commissioned the work.
(4) Where an invention has been made within the fields of activity of an organization practicing the employment contract system, the right to file the patent application shall belong to the employing organization if the contract does not specify the party to be entitled to file the patent application.
(5) The right to file the patent application may be assigned to other organization or person by mean of written document.
Section 28
(1) The patent application shall be filed with the National Office on Inventions. The patent applicant shall pay the fee prescribed by the State Committee for Science and Technology.
(2) The procedure for the preparation and filing of patent applications shall be laid down by the State Committee for Science and Technology.
Section 29
(1) The priority right to the patent application shall be determined by priority date.
(2) The priority date shall be, in the absence of a declaration claiming an earlier priority date provided for in Subsection (3) of this Section, the date at which the acceptable application is filed with the National Office on Inventions.
(3) The applicant may claim a priority date earlier than the filing date of the acceptable application in the following case:
a- When invention has been displayed on an official, or accepted as such, international exhibition held in one of the countries party to the Paris Convention for the Protection of Industrial Property and, in this case, the priority date shall be the date of display of the invention on the exhibition if the patent application is filed within a period of six months counted from that date.
b- When being a national of country to the Paris Convention for the Protection of Industrial Property or national of an other country but domiciled or having a real and effective industrial, commercial establishment in the country party to the Paris Convention for the Protection of Industrial Property and, in these case, the priority date shall be the filing date of the earliest application filed in one of the countries party to the said Convention if the patent application is filed within a period of twelve months counted from that date.
(4) The application wishing to claim a priority date provided for Subsection (3) of this Section shall specify it in the patent application and, within period of three months counted from the filing date of the patent application, to furnish to the National Office on Inventions the necessary documents for justifying the legality of the request.
Part D: EXAMINATION OF PATENT APPLICATION, GRANT OF PATENT AND PUBLICATION
Section 30
(1) Within a period of three months counted from the filing date of the patent application. The National Office on Inventions shall effect the examination as to form of the application and notify the applicant of the acceptance or reject of the application or request the applicant to make correction or to complete necessary document.
(2) If, within a period of one month counted from the date of receipt of the notification, the applicant has not furnished the required corrections, complement, the application shall be deemed not having been filed.
Section 31
(1) Within the period of eighteen months counted from the filing date of the patent application, the National Office on Inventions shall effect the examination as to substance of the application.
(2) On the basis of the examination report, the Director of National Office on Inventions shall decide whether or not to grant the patent to applicant. In case of the refusal of the grant of the patent, the National Office on Inventions shall notify the applicant the reason therefor.
Section 32
(1) During the examination as to form of the application, the National Office on Inventions shall have the right to invite the applicant to submit complementary documents for clarifying the essence of the solution described in the application.
(2) The application shall be no longer the subject of examination if, within a period of one month counted from the date of receipt of the request made by the National Office on Inventions, the applicant has not submitted the amendment, complementary documents for clarifying the essence of the solution described in the application.
In case the complementary documents change the essence of the solution, the procedure for filing application shall be recommenced.
Section 33
Upon the request of the National Office on Inventions, the scientific research and technical development establishments, universities and other organizations, units shall have the obligation to supply information necessary to the examination of applications or participate in the evaluation of novelty, inventive step and applicability of solutions described in applications relating to their
field of professional activity.
Section 34
(1) Within the period of three months counted from the date of the grant of the patent, the National Office on Inventions shall publish the patented invention in publication, namely in Industrial Property Gazette.
The publication of the patented invention shall contain: the title, the abstract of the invention, the name of the inventor, the name of the owner of the patent, the filing date, the priority date, the date of the grant of the patent and other information that the National Office on Inventions considered necessary.
(2)Any organization or person may, after the patented invention has been published, inspect the description of the invention.
(3) For the purpose of the assurance of the national interests, the National Office on inventions may, in the case of necessity, differ or renounce the publication of the patented invention.
Part E: SECRET INVENTIONS
Section 35
(1) Inventions relating to national defense and security or being found, with respect to the assurance of national interests, to be kept in secret shall be considered secret inventions.
(2) The technical fields relating to national defense and security where the inventions are to be kept in secret as provided in Subsection (1) of this Section shall be specified by the Minister of National Defense.
Ministers, Chairmen of State Committees, heads of organizations subordinated directly to the Council of Ministers may request the keeping in secret of inventions relating to their field of activity.
Section 36
(1) In case of a secret invention, the inventor, the owner of the patent and persons involved in preparation, filing, examination of the application and in working of the invention shall have the obligation to keep the invention secret according to the regulations relating to the protection of national secret.
(2) In respect of secret inventions, the procedure of the filing, examination of patent applications, the grant of patents, the publication of inventions shall be laid down by the State Committee for Science and Technology and Minister of Defense in consultation with the Ministry of Interior.
Chapter III
APPLICATION AND INFORMATION OF INNOVATIONS, INVENTIONS
Section 37
(1) Organizations, units shall have the obligation to apply innovations, inventions in due time, in such a way that the best use thereof can be made according to the needs arising in the production or other activities.
(2) The application of any innovation, invention to the production or other activities shall be the subject of the decision shall contain the date at which the application commences, the names of persons, groups engaged therein, the new economic technical standards, norms.
(3) In case the application of innovation, invention changes the prevailing standards, norms, the organization, unit shall have the obligation to examine and to adjust for rendering them reasonable. In case the application of an innovation, invention raises the productivity, the person engaged in the application referred to in Subsection (2) of this Section shall be paid the salary and remuneration calculated according to the standards, norm previously in force, for a period of, at most, six months from the commencement of the application.
Section 38
(1) In case of innovation, invention the application of which may be realized in other organizations, units in the branch or locality, the organization, unit applying it shall have the obligation to submit, in due time, a report to the higher administration on the subject matter and usefulness of the applied innovation, invention and to create conditions in favor of other organizations enterprises intending to apply that innovation, invention.
(2) Branches, localities shall have the obligation to organize the information service relating to innovation, inventions in organizations, enterprises of their branches, localities.
(3) The State Committee for Science and Technology shall organize the patent information system throughout the country. In case of inventions of great value, the State Committee of Science and Technology shall communicate relevant information or proposals to the State Committee for Planning, branches, localities for the consideration and inclusion thereof in plans for advanced technology application.
Chapter IV
ASSURANCE OF RIGHT OF INNOVATORS, INVENTORS
Part A: ROYALTY OT INNOVATORS, INVENTORS
Section 39
(1) Within the term of validity of the patent, the owner of the patent, when working the invention or assigning the right to work the invention, shall have the obligation to pay the inventor an amount of royalty.
(2) In the absence of agreement to the contrary in the employment contract, the royalty due to the inventor may not be less than eight percent of the profit derived from the working of the invention. In case of the assignment of the right to work the invention, the amount obtained from the sale of the license, deducted by related expenses shall be considered profit.
Section 40
(1) State organizations, units, economic collectives when working an innovation and making profit shall pay royalty to the innovator. (2) The amount of royalty due to the innovator shall be calculated for the first year of the application and may not be less than five percent of the profit made.
Section 41
(1) The amount of royalty due to the innovator shall be paid within a period of one month after the first year of the application of the innovation. For the purpose of encouraging the innovator, the organization, unit which applies the innovation may, at the every beginning of the application, pay the innovator, in advance, an amount of royalty which is to be considered part of the total amount due to the innovator after the first year of application. (2) The royalty due to the inventor shall be paid within a period of two months counted from the end of each year of application or from the receipt of payment derived from the sale of license.
Section 42.
(1) Where the profit derived from the working of an innovation or invention can not be expressed in term of money, the amount of royalty due to the innovator or inventor shall be determined according to the instructions of the Ministry of Finance and the State Committee for Science and Technology.
(2) Where the application of an innovation or invention changes the design, the execution of a construction work, the amount of royalty due to the innovator or inventor shall be determined according to the instructions of the Ministry of Construction and State Committee for Science and Technology.
Section 43
Where an innovation is extensively applied within a branch or locality, the innovator shall be entitled to be paid royalties in accordance with Sections 40, 41 due by organizations, units which, within a period of three years from the first application, apply the innovation.
Section 44
(1) In case of an innovation when the organization, unit applying it has not made any profit, the innovator shall be entitled to be paid the royalty due by whichever organization, unit having made profit on the working of the innovation.
(2) The amount of royalty in case of an innovation referred to in subsection 44 shall be determined by the organization, unit applying the innovation.
Part B: MEASURES FOR ENCOURAGEMENT OF INNOVATORS, INVENTORS
Section 45
Heads of organizations, units at basic level and heads of branches at all levels shall have to cooperate with the mass organizations in taking appropriate measures for the encouragement of innovators, inventors. According to the result achieved, innovators, inventors may be awarded diplomas or titles of honor. In case of innovations, inventors of great achievement, the innovators, inventors may be awarded medals, orders, National Science and Technology Prizes or high, National honorary title.
Section 46
(1) Heads of organizations, units shall be responsible for creation of favorable conditions for innovators, inventors in making the best of their creativeness, in participating in the experimentation, improvement and application of innovations, inventions and the supervision thereof.
(2) Organizations, units, branches at all levels may apply preferential treatment to innovators, inventors when considering their material interests such as promotion of salary, professional grade or housing, training, improving qualification.
Section 47
(1) In order to encourage the making of innovations heads of organizations, units may conclude with their staff the following contracts:
a) Research for making solutions to specific technical problems or production management problems which are important and urgent for the organization, units;
b) Introduction of registered innovations or patented inventions made by their organization unit to apply in the production, activities.
(2) Solutions which have been made in execution of contracts referred to in Paragraph 47 ( 1/ a) shall be considered innovation. In addition to the royalty fixed in the contract, heads of organizations, units may apply other forms of remuneration, encouragement to innovators.
Part C: ENCOURAGEMENT OF ASSISTANT ACTIVITIES IN MAKING, APPLICATION OF INNOVATIONS, INVENTIONS
Section 48
(1) Persons having been commissioned as their tasks to assist the innovators, inventors during the course of research for the making of innovations, inventions, and persons having taken part in the first application of the innovations, inventions shall be entitled to be paid of remuneration's which may be up to fifty percent of the amount of royalties due to the innovators, inventors calculated for the first year of the application of the innovations or inventions.
(2) The amount of remuneration due to the assistants of innovators, inventors or to the participants in the first application of innovations, inventions shall be covered by the profit derived from the application of innovations, inventions and paid at the same time of the payment of royalty to the innovators, inventors after the first year of application.
(3) When making the decision on the payment of remuneration to each of the above mentioned persons, shall be taken into account:
a/ The volume and the complexity of tasks the accomplishment of which he engaged in;
b/ The initiative he has shown for accelerating the process of the making and application of the innovation, invention.
Chapter V
SETTLEMENT OF APPEALS, DISPUTES, INFRINGEMENT PROCEEDINGS
Section 49
(1) Any applicant for certificate of innovation shall have the right to appeal to the head of organization, unit concerned in the following cases:
a/ The application for certificate of innovation has not been examined within the prescribed time limit;
b/ The applicant disagrees with the reasons that the organization, unit has referred to refusing the grant of the certificate for innovation.
(2) Within a period of one month counted from the date of the filling of the appeal, the head of the organization, unit shall settle the matter. In case the appellant disagrees with the decision of the head of the organization, unit, he may appeals at each level may not be longer than one month. The decision of Minister, Chairmen of People's Committees of provinces or cities subordinated to the Central Government and the like shall be final in this respect.
Section 50
(1) The applicant for patent may appeal to the Director of the National Office on Inventions if he:
a/ disagrees with the reasons for rejecting the patent application; b/ disagrees with the reasons for refusing the grant of the patent; c/ disagrees with the claims formulated by the National Office on Inventions.
(2) Within the term of validity of the patent, any organization or person may appeal to the Director of the National Office on Inventions against the grant of the patent for the reason that the requirements provided for in Sections 10, 11 and 13 of this Ordinance were not fulfilled. The appellant shall pay the fee prescribed by the State Committee for Science and Technology.
(3) Within a period of three months counted from the receipt of the appeal referred to in Subsection 50(1), (2), the Director of the National Office on Inventions shall settle the matter and notify the appellant of the outcome of the settlement.
In case of disagreement with the decision made by the Director of the National Office on Inventions with respect to the settlement of the appeal, any party concerned may appeal to the Chairman of the State Committee for Science and Technology.
The decision of the Chairman of the State Committee for Science and Technology shall be final in this respect.
(4) On the basic of the outcome of the settlement referred to in Subsection 50(3), the Director of the National Office on Inventions shall effect the procedure of the grant of patent, the amendment of claims, the maintenance or the invalidation of the granted patent.
Section 51
(1) Any organization or person may appeal to the Director of National Office on Inventions against the grant of the patent to an organization which, or person who, had no right to file the patent application as provided for in Section 27 or against the recognition, in the patent, of a person as the inventor when that person has not made the invention. The appellants shall pay the fee prescribed by the State Committee for Science and Technology.
Within a period of three months counted from the receipt of the appeal, the Director of the National Office on Inventions shall settle the matter and notify the appellant of the outcome of the settlement.
In case of disagreement with the decision made by the Director of the National Office on Inventions, any party concerned may, within a period of three months counted from the receipt of the notification of the decision, request the court of the province or city subordinated to the Central Government to settle the matter.
(2) On the basic of the settlement of the appeal accepted by the parties concerned, or on the basic of the final judgment of the court, the Director of the National Office on Inventions shall effect the procedure of the maintenance, the amendment or the invalidation of the granted patent.
Section 52
(1)Within the term of validity of the patent, the owner of the patent shall have the right to apply to the court of province or city subordinated to the Central Government for instituting court proceedings against the infringements of his right provided for in Sections 17, 18 of this Ordinance.
Before to applying to the court for instituting court proceedings, the owner of the patent may request the competent authorities to grant the infuntion to make the infringing organization or person discontinue the acts of infringements.
(2) In respect of disputes arising from the fields of industrial property where one or both party is foreign organization or person, the party concerned shall have the right to apply to the court of Hanoi or Ho Chi Minh City for the settlement of the matter.
Section 53
(1) Innovator may appeal to the head of organization, unit responsible to pay the royalty for the settlement of the matters relating to the amount and schedule of the payment of the royalty. Within a period of two months counted from the receipt of the appeal, the head of the organization, unit shall have the obligation to settle the matter and notify the appellant of his decision. After the said time limit if the head of the organization, unit has not settled the matter or the appellant disagrees with the decision of the head of the organization, unit, he may appeal to the direction of higher level.
Time limit for settlement of the appeal at each level may not be longer than two months from the receipt of the appeal. The decision of the Ministers, Chairmen of State Committees, heads of Organizations subordinated directly to the Council of Ministers, Chairmen of People's Committees of provinces or cities subordinated to the Central Government and heads of administrative organizations of ministerial rank shall be final in this respect.
(2) Inventor has the right to apply to the court of province or city subordinate to the Central Government for instituting court proceedings against the owner of the patent in case the latter does not pay the royalty or does not respect the schedule of payment. Before instituting court proceedings, the inventor may request the competent authorities to take appropriate measures for forcing the owner of the patent to pay him the royalty according to provision laid down by the State.
Chapter VI
ORGANIZATION AND MANAGEMENT OF ACTIVITIES RELATING TO INNOVATIONS, INVENTIONS
Part A: STATE ORGANIZATION
Section 54
(1) The State Committee for Science and Technology shall be entrusted with the organization, the management and the central administration of activities relating to innovations, inventions throughout the country.
(2) Ministries, organizations of ministerial rank, organizations subordinated directly to the Government Council, People's Committees of provinces and cities subordinated directly to the Central Government shall be entrusted with the organization, management and administration of activities relating to innovations, inventions in their own branch or territory.
The scientific, echnical administrative bodies within branches or localities shall have the obligation to assist the head of branches, People' Committees of localities in performing their duties.
(3) Heads of organizations, units shall have through obligation to the development of activities relating to innovations, inventions within their own organization, unit.
The scientific, technical administrative bodies of organizations, units shall have the obligation to assist the head of organizations, units performing their duties and appoint a cadre or a group in charge of administration of activities relating to innovations, inventions.
(4) State organizations, enterprises may establish consultative commission in charge of assisting the heads of organization, units to perform their duties in respect of organization, management of activities relating to innovations, inventions (shortly referred to as commission for innovations, inventions).
Administrative organizations of branches, people's committees of provinces may, according to the actual situation, establish commission for innovations, inventions of their own.
Section 55
Heads of branches, administrative organizations of all levels shall collaborate closely with mass organizations, in particular with the Labour union and Union of Ho Chi Minh Communist Youth in the organization, management of activities relating to innovations, inventions.
Part B: FINANCING OF ACTIVITIES RELATING TO INNOVATIONS, INVENTIONS
Section 56
(1) Organizations, units and administrative bodies of branches may make budget forecast for: (a) taking measures for intensive development of activities relating to innovations, inventions; (b) accomplish experimentation, testing relating to the application of innovations, inventions; (c) paying the murnerations to the innovators, inventors, their assistants and persons engaged in the first application of innovations, inventions.
(2) Expenditures for experimentation and application of innovations, inventions shall be covered by:
- the fund for encouragement of production development;
- funds assigned to scientific, technical research;
- funds assigned for administrative organizations.
(3) The expenditure in respect of remuneration's, promotion of activities relating to innovations, inventions shall be taken:
(a) in case of production or trade units, from the profit derived from the application of innovations, inventions;
(b) in case of administrative or managing or organ, from the expenditure set aside for administration or scientific, technical research.
(4) The procedure for the drawing up the budget, accounting and making the balance sheet in relation to expenditures refereed to in subsection (1) of this Section shall be set forth by the Ministry of Finance and the State Committee for Science and Technology.
Chapter VII
IMPLEMENTATION PROVISIONS
Section 57
The State Committee for Science and Technology shall be responsible it self or in cooperation with the authorities concerned to issue the regulations for interpreting and guiding the implementation of this Ordinance.
Section 58
Ministers, heads of organizations of ministerial rank, organizations subordinated directly to the Government Council, Chairmen of People's Committees of provinces or cities subordinate directly to the Central Government shall, on the basic of this Ordinance and taking into account the peculiarities of branches, localities of their own, issue detailed instructions and keep supervising for the implementation of this Ordinance.
Section 59
This Ordinance shall enter into force on the date of its signature.
Provisions relating to the payment of remuneration in respect of innovations, inventions which are contrary to this Ordinance shall be repealed.
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31-CP
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Nghị định
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Hội đồng Chính phủ
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Tố Hữu
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23/01/1981
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23/01/1981
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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UNITED NATIONS CONVENTION
ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) [CISG]
THE STATES PARTIES TO THIS CONVENTION,
BEARING IN MIND the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order,
CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States,
BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,
HAVE AGREED as follows:
Part I
SPHERE OF APPLICATION AND GENERAL PROVISIONS
Chapter I
SPHERE OF APPLICATION
Article 1
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.
(2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.
Article 2
This Convention does not apply to sales:
(a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;
(b) by auction;
(c) on execution or otherwise by authority of law;
(d) of stocks, shares, investment securities, negotiable instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity.
Article 3
(1) Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.
(2) This Convention does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.
Article 4
This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with:
(a) the validity of the contract or of any of its provisions or of any usage;
(b) the effect which the contract may have on the property in the goods sold.
Article 5
This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.
Article 6
The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.
Chapter II
GENERAL PROVISIONS
Article 7
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
Article 8
(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware what that intent was.
(2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances.
(3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties.
Article 9
(1) The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves.
(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
Article 10
For the purposes of this Convention:
(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;
(b) if a party does not have a place of business, reference is to be made to his habitual residence.
Article 11
A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses.
Article 12
Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect or this article.
Article 13
For the purposes of this Convention "writing" includes telegram and telex.
Part II
FORMATION OF THE CONTRACT
Article 14
(1) A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.
(2) A proposal other than one addressed to one or more specific persons is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.
Article 15
(1) An offer becomes effective when it reaches the offeree.
(2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.
Article 16
(1) Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance.
(2) However, an offer cannot be revoked:
(a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or
(b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.
Article 17
An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.
Article 18
(1) A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.
(2) An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. An acceptance is not effective if the indication of assent does not reach the offeror within the time he has fixed or, if no time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise.
(3) However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the dispatch of the goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.
Article 19
(1) A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer.
(2) However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.
(3) Additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.
Article 20
(1) A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by telephone, telex or other means of instantaneous communication, begins to run from the moment that the offer reaches the offeree.
(2) Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows.
Article 21
(1) A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect.
(2) If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offeror orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect.
Article 22
An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.
Article 23
A contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention.
Article 24
For the purposes of this Part of the Convention, an offer, declaration of acceptance or any other indication of intention "reaches" the addressee when it is made orally to him or delivered by any other means to him personally, to his place of business or mailing address or, if he does not have a place of business or mailing address, to his habitual residence.
Part III
SALE OF GOODS
Chapter I
GENERAL PROVISIONS
Article 25
A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result.
Article 26
A declaration of avoidance of the contract is effective only if made by notice to the other party.
Article 27
Unless otherwise expressly provided in this Part of the Convention, if any notice, request or other communication is given or made by a party in accordance with this Part and by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on the communication.
Article 28
If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.
Article 29
(1) A contract may be modified or terminated by the mere agreement of the parties.
(2) A contract in writing which contains a provision requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated by agreement. However, a party may be precluded by his conduct from asserting such a provision to the extent that the other party has relied on that conduct.
Chapter II
OBLIGATIONS OF THE SELLER
Article 30
The seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.
Section I. Delivery of the goods and handing over of documents
Article 31
If the seller is not bound to deliver the goods at any other particular place, his obligation to deliver consists:
(a) if the contract of sale involves carriage of the goods - in handing the goods over to the first carrier for transmission to the buyer;
(b) if, in cases not within the preceding subparagraph, the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced, and at the time of the conclusion of the contract the parties knew that the goods were at, or were to be manufactured or produced at, a particular place - in placing the goods at the buyer's disposal at that place;
(c) in other cases - in placing the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract.
Article 32
(1) If the seller, in accordance with the contract or this Convention, hands the goods over to a carrier and if the goods are not clearly identified to the contract by markings on the goods, by shipping documents or otherwise, the seller must give the buyer notice of the consignment specifying the goods.
(2) If the seller is bound to arrange for carriage of the goods, he must make such contracts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstances and according to the usual terms for such transportation.
(3) If the seller is not bound to effect insurance in respect of the carriage of the goods, he must, at the buyer's request, provide him with all available information necessary to enable him to effect such insurance.
Article 33
The seller must deliver the goods:
(a) if a date is fixed by or determinable from the contract, on that date;
(b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or
(c) in any other case, within a reasonable time after the conclusion of the contract.
Article 34
If the seller is bound to hand over documents relating to the goods, he must hand them over at the time and place and in the form required by the contract. If the seller has handed over documents before that time, he may, up to that time, cure any lack of conformity in the documents, if the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.
Section II. Conformity of the goods and third party claims
Article 35
(1) The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract.
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they:
(a) are fit for the purposes for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement;
(c) possess the qualities of goods which the seller has held out to the buyer as a sample or model;
(d) are contained or packaged in the manner usual for such goods or, where there is no such manner, in a manner adequate to preserve and protect the goods.
(3) The seller is not liable under subparagraphs (a) to (d) of the preceding paragraph for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.
Article 36
(1) The seller is liable in accordance with the contract and this Convention for any lack of conformity which exists at the time when the risk passes to the buyer, even though the lack of conformity becomes apparent only after that time.
(2) The seller is also liable for any lack of conformity which occurs after the time indicated in the preceding paragraph and which is due to a breach of any of his obligations, including a breach of any guarantee that for a period of time the goods will remain fit for their ordinary purpose or for some particular purpose or will retain specified qualities or characteristics.
Article 37
If the seller has delivered goods before the date for delivery, he may, up to that date, deliver any missing part or make up any deficiency in the quantity of the goods delivered, or deliver goods in replacement of any non-conforming goods delivered or remedy any lack of conformity in the goods delivered, provided that the exercise of this right does not cause the buyer unreasonable inconvenience or unreasonable expense. However, the buyer retains any right to claim damages as provided for in this Convention.
Article 38
(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances.
(2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination.
(3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination.
Article 39
(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.
(2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent with a contractual period of guarantee.
Article 40
The seller is not entitled to rely on the provisions of articles 38 and 39 if the lack of conformity relates to facts of which he knew or could not have been unaware and which he did not disclose to the buyer.
Article 41
The seller must deliver goods which are free from any right or claim of a third party, unless the buyer agreed to take the goods subject to that right or claim. However, if such right or claim is based on industrial property or other intellectual property, the seller's obligation is governed by article 42.
Article 42
(1) The seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware, provided that the right or claim is based on industrial property or other intellectual property:
(a) under the law of the State where the goods will be resold or otherwise used, if it was contemplated by the parties at the time of the conclusion of the contract that the goods would be resold or otherwise used in that State; or
(b) in any other case, under the law of the State where the buyer has his place of business.
(2) The obligation of the seller under the preceding paragraph does not extend to cases where:
(a) at the time of the conclusion of the contract the buyer knew or could not have been unaware of the right or claim; or
(b) the right or claim results from the seller's compliance with technical drawings, designs, formulae or other such specifications furnished by the buyer.
Article 43
(1) The buyer loses the right to rely on the provisions of article 41 or article 42 if he does not give notice to the seller specifying the nature of the right or claim of the third party within a reasonable time after he has become aware or ought to have become aware of the right or claim.
(2) The seller is not entitled to rely on the provisions of the preceding paragraph if he knew of the right or claim of the third party and the nature of it.
Article 44
Notwithstanding the provisions of paragraph (1) of article 39 and paragraph (1) of article 43, the buyer may reduce the price in accordance with article 50 or claim damages, except for loss of profit, if he has a reasonable excuse for his failure to give the required notice.
Section III. Remedies for breach of contract by the seller
Article 45
(1) If the seller fails to perform any of his obligations under the contract or this Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim damages by exercising his right to other remedies.
(3) No period of grace may be granted to the seller by a court or arbitral tribunal when the buyer resorts to a remedy for breach of contract.
Article 46
(1) The buyer may require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.
(2) If the goods do not conform with the contract, the buyer may require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under article 39 or within a reasonable time thereafter.
(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repair, unless this is unreasonable having regard to all the circumstances. A request for repair must be made either in conjunction with notice given under article 39 or within a reasonable time thereafter.
Article 47
(1) The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations.
(2) Unless the buyer has received notice from the seller that he will not perform within the period so fixed, the buyer may not, during that period, resort to any remedy for breach of contract. However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance.
Article 48
(1) Subject to article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of expenses advanced by the buyer. However, the buyer retains any right to claim damages as provided for in this Convention.
(2) If the seller requests the buyer to make known whether he will accept performance and the buyer does not comply with the request within a reasonable time, the seller may perform within the time indicated in his request. The buyer may not, during that period of time, resort to any remedy which is inconsistent with performance by the seller.
(3) A notice by the seller that he will perform within a specified period of time is assumed to include a request, under the preceding paragraph, that the buyer make known his decision.
(4) A request or notice by the seller under paragraph (2) or (3) of this article is not effective unless received by the buyer.
Article 49
(1) The buyer may declare the contract avoided:
(a) if the failure by the seller to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or
(b) in case of non-delivery, if the seller does not deliver the goods within the additional period of time fixed by the buyer in accordance with paragraph (1) of article 47 or declares that he will not deliver within the period so fixed.
(2) However, in cases where the seller has delivered the goods, the buyer loses the right to declare the contract avoided unless he does so:
(a) in respect of late delivery, within a reasonable time after he has become aware that delivery has been made;
(b) in respect of any breach other than late delivery, within a reasonable time:
(i) after he knew or ought to have known of the breach;
(ii) after the expiration of any additional period of time fixed by the buyer in accordance with paragraph (1) of article 47, or after the seller has declared that he will not perform his obligations within such an additional period; or
(iii) after the expiration of any additional period of time indicated by the seller in accordance with paragraph (2) of article 48, or after the buyer has declared that he will not accept performance.
Article 50
If the goods do not conform with the contract and whether or not the price has already been paid, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. However, if the seller remedies any failure to perform his obligations in accordance with article 37 or article 48 or if the buyer refuses to accept performance by the seller in accordance with those articles, the buyer may not reduce the price.
Article 51
(1) If the seller delivers only a part of the goods or if only a part of the goods delivered is in conformity with the contract, articles 46 to 50 apply in respect of the part which is missing or which does not conform.
(2) The buyer may declare the contract avoided in its entirety only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract.
Article 52
(1) If the seller delivers the goods before the date fixed, the buyer may take delivery or refuse to take delivery.
(2) If the seller delivers a quantity of goods greater than that provided for in the contract, the buyer may take delivery or refuse to take delivery of the excess quantity. If the buyer takes delivery of all or part of the excess quantity, he must pay for it at the contract rate.
Chapter III
OBLIGATIONS OF THE BUYER
Article 53
The buyer must pay the price for the goods and take delivery of them as required by the contract and this Convention.
Section I. Payment of the price
Article 54
The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made.
Article 55
Where a contract has been validly concluded but does not expressly or implicitly fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such goods sold under comparable circumstances in the trade concerned.
Article 56
If the price is fixed according to the weight of the goods, in case of doubt it is to be determined by the net weight.
Article 57
(1) If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller:
(a) at the seller's place of business; or
(b) if the payment is to be made against the handing over of the goods or of documents, at the place where the handing over takes place.
(2) The seller must bear any increases in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract.
Article 58
(1) If the buyer is not bound to pay the price at any other specific time, he must pay it when the seller places either the goods or documents controlling their disposition at the buyer's disposal in accordance with the contract and this Convention. The seller may make such payment a condition for handing over the goods or documents.
(2) If the contract involves carriage of the goods, the seller may dispatch the goods on terms whereby the goods, or documents controlling their disposition, will not be handed over to the buyer except against payment of the price.
(3) The buyer is not bound to pay the price until he has had an opportunity to examine the goods, unless the procedures for delivery or payment agreed upon by the parties are inconsistent with his having such an opportunity.
Article 59
The buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller.
Section II. Taking delivery
Article 60
The buyer's obligation to take delivery consists:
(a) in doing all the acts which could reasonably be expected of him in order to enable the seller to make delivery; and
(b) in taking over the goods.
Section III. Remedies for breach of contract by the buyer
Article 61
(1) If the buyer fails to perform any of his obligations under the contract or this Convention, the seller may:
(a) exercise the rights provided in articles 62 to 65;
(b) claim damages as provided in articles 74 to 77.
(2) The seller is not deprived of any right he may have to claim damages by exercising his right to other remedies.
(3) No period of grace may be granted to the buyer by a court or arbitral tribunal when the seller resorts to a remedy for breach of contract.
Article 62
The seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.
Article 63
(1) The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations.
(2) Unless the seller has received notice from the buyer that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract. However, the seller is not deprived thereby of any right he may have to claim damages for delay in performance.
Article 64
(1) The seller may declare the contract avoided:
(a) if the failure by the buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract; or
(b) if the buyer does not, within the additional period of time fixed by the seller in accordance with paragraph (1) of article 63, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the period so fixed.
(2) However, in cases where the buyer has paid the price, the seller loses the right to declare the contract avoided unless he does so:
(a) in respect of late performance by the buyer, before the seller has become aware that performance has been rendered; or
(b) in respect of any breach other than late performance by the buyer, within a reasonable time:
(i) after the seller knew or ought to have known of the breach; or
(ii) after the expiration of any additional period of time fixed by the seller in accordance with paragraph (1) of article 63, or after the buyer has declared that he will not perform his obligations within such an additional period.
Article 65
(1) If under the contract the buyer is to specify the form, measurement or other features of the goods and he fails to make such specification either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.
(2) If the seller makes the specification himself, he must inform the buyer of the details thereof and must fix a reasonable time within which the buyer may make a different specification. If, after receipt of such a communication, the buyer fails to do so within the time so fixed, the specification made by the seller is binding.
Chapter IV
PASSING OF RISK
Article 66
Loss of or damage to the goods after the risk has passed to the buyer does not discharge him from his obligation to pay the price, unless the loss or damage is due to an act or omission of the seller.
Article 67
(1) If the contract of sale involves carriage of the goods and the seller is not bound to hand them over at a particular place, the risk passes to the buyer when the goods are handed over to the first carrier for transmission to the buyer in accordance with the contract of sale. If the seller is bound to hand the goods over to a carrier at a particular place, the risk does not pass to the buyer until the goods are handed over to the carrier at that place. The fact that the seller is authorized to retain documents controlling the disposition of the goods does not affect the passage of the risk.
(2) Nevertheless, the risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings on the goods, by shipping documents, by notice given to the buyer or otherwise.
Article 68
The risk in respect of goods sold in transit passes to the buyer from the time of the conclusion of the contract. However, if the circumstances so indicate, the risk is assumed by the buyer from the time the goods were handed over to the carrier who issued the documents embodying the contract of carriage. Nevertheless, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller.
Article 69
(1) In cases not within articles 67 and 68, the risk passes to the buyer when he takes over the goods or, if he does not do so in due time, from the time when the goods are placed at his disposal and he commits a breach of contract by failing to take delivery.
(2) However, if the buyer is bound to take over the goods at a place other than a place of business of the seller, the risk passes when delivery is due and the buyer is aware of the fact that the goods are placed at his disposal at that place.
(3) If the contract relates to goods not then identified, the goods are considered not to be placed at the disposal of the buyer until they are clearly identified to the contract.
Article 70
If the seller has committed a fundamental breach of contract, articles 67, 68 and 69 do not impair the remedies available to the buyer on account of the breach.
Chapter V
PROVISIONS COMMON TO THE OBLIGATIONS OF THE SELLER AND OF THE BUYER
Section I. Anticipatory breach and instalment contracts
Article 71
(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of:
(a) a serious deficiency in his ability to perform or in his creditworthiness; or
(b) his conduct in preparing to perform or in performing the contract.
(2) If the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller.
(3) A party suspending performance, whether before or after dispatch of the goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party provides adequate assurance of his performance.
Article 72
(1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided.
(2) If time allows, the party intending to declare the contract avoided must give reasonable notice to the other party in order to permit him to provide adequate assurance of his performance.
(3) The requirements of the preceding paragraph do not apply if the other party has declared that he will not perform his obligations.
Article 73
(1) In the case of a contract for delivery of goods by instalments, if the failure of one party to perform any of his obligations in respect of any instalment constitutes a fundamental breach of contract with respect to that instalment, the other party may declare the contract avoided with respect to that instalment.
(2) If one party's failure to perform any of his obligations in respect of any instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, he may declare the contract avoided for the future, provided that he does so within a reasonable time.
(3) A buyer who declares the contract avoided in respect of any delivery may, at the same time, declare it avoided in respect of deliveries already made or of future deliveries if, by reason of their interdependence, those deliveries could not be used for the purpose contemplated by the parties at the time of the conclusion of the contract.
Section II. Damages
Article 74
Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.
Article 75
If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74.
Article 76
(1) If the contract is avoided and there is a current price for the goods, the party claiming damages may, if he has not made a purchase or resale under article 75, recover the difference between the price fixed by the contract and the current price at the time of avoidance as well as any further damages recoverable under article 74. If, however, the party claiming damages has avoided the contract after taking over the goods, the current price at the time of such taking over shall be applied instead of the current price at the time of avoidance.
(2) For the purposes of the preceding paragraph, the current price is the price prevailing at the place where delivery of the goods should have been made or, if there is no current price at that place, the price at such other place as serves as a reasonable substitute, making due allowance for differences in the cost of transporting the goods.
Article 77
A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.
Section III. Interest
Article 78
If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it, without prejudice to any claim for damages recoverable under article 74.
Section IV. Exemptions
Article 79
(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.
(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if:
(a) he is exempt under the preceding paragraph; and
(b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him.
(3) The exemption provided by this article has effect for the period during which the impediment exists.
(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.
(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.
Article 80
A party may not rely on a failure of the other party to perform, to the extent that such failure was caused by the first party's act or omission.
Section V. Effects of avoidance
Article 81
(1) Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. Avoidance does not affect any provision of the contract for the settlement of disputes or any other provision of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract.
(2) A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract. If both parties are bound to make restitution, they must do so concurrently.
Article 82
(1) The buyer loses the right to declare the contract avoided or to require the seller to deliver substitute goods if it is impossible for him to make restitution of the goods substantially in the condition in which he received them.
(2) The preceding paragraph does not apply:
(a) if the impossibility of making restitution of the goods or of making restitution of the goods substantially in the condition in which the buyer received them is not due to his act or omission;
(b) if the goods or part of the goods have perished or deteriorated as a result of the examination provided for in article 38; or
(c) if the goods or part of the goods have been sold in the normal course of business or have been consumed or transformed by the buyer in the course of normal use before he discovered or ought to have discovered the lack of conformity.
Article 83
A buyer who has lost the right to declare the contract avoided or to require the seller to deliver substitute goods in accordance with article 82 retains all other remedies under the contract and this Convention.
Article 84
(1) If the seller is bound to refund the price, he must also pay interest on it, from the date on which the price was paid.
(2) The buyer must account to the seller for all benefits which he has derived from the goods or part of them:
(a) if he must make restitution of the goods or part of them; or
(b) if it is impossible for him to make restitution of all or part of the goods or to make restitution of all or part of the goods substantially in the condition in which he received them, but he has nevertheless declared the contract avoided or required the seller to deliver substitute goods.
Section VI. Preservation of the goods
Article 85
If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer.
Article 86
(1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller.
(2) If goods dispatched to the buyer have been placed at his disposal at their destination and he exercises the right to reject them, he must take possession of them on behalf of the seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. This provision does not apply if the seller or a person authorized to take charge of the goods on his behalf is present at the destination. If the buyer takes possession of the goods under this paragraph, his rights and obligations are governed by the preceding paragraph.
Article 87
A party who is bound to take steps to preserve the goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable.
Article 88
(1) A party who is bound to preserve the goods in accordance with article 85 or 86 may sell them by any appropriate means if there has been an unreasonable delay by the other party in taking possession of the goods or in taking them back or in paying the price or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party.
(2) If the goods are subject to rapid deterioration or their preservation would involve unreasonable expense, a party who is bound to preserve the goods in accordance with article 85 or 86 must take reasonable measures to sell them. To the extent possible he must give notice to the other party of his intention to sell.
(3) A party selling the goods has the right to retain out of the proceeds of sale an amount equal to the reasonable expenses of preserving the goods and of selling them. He must account to the other party for the balance.
Part IV
FINAL PROVISIONS
Article 89
The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.
Article 90
This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.
Article 91
(1) This Convention is open for signature at the concluding meeting of the United Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations, New York until 30 September 1981.
(2) This Convention is subject to ratification, acceptance or approval by the signatory States.
(3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature.
(4) Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.
Article 92
(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention.
(2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.
Article 93
(1) If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.
(2) These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.
(3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.
(4) If a Contracting State makes no declaration under paragraph (1) of this article, the Convention is to extend to all territorial units of that State.
Article 94
(1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations.
(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States.
(3) If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration.
Article 95
Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention.
Article 96
A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.
Article 97
(1) Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval.
(2) Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary.
(3) A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary. Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary.
(4) Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary.
(5) A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article.
Article 98
No reservations are permitted except those expressly authorized in this Convention.
Article 99
(1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92.
(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.
(3) A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.
(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 52 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect.
(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.
(6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect.
Article 100
(1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1.
(2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1.
Article 101
(1) A Contracting State may denounce this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.
DONE at Vienna, this day of eleventh day of April, one thousand nine hundred and eighty, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention.
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Điều ước quốc tế
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Liên hợp quốc
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***
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11/04/1980
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01/01/2017
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THE GOVERNMENT COUNCIL
SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness
No. 30-CP
Hanoi, January 29, 1980
DECREE
NO. 30-CP DATED JANUARY 29, 1980, ON REGULATION FOR FOREIGN VESSELS TO OPERATE ON SEA AREAS OF THE SOCIALIST REPUBLIC OF VIETNAM
THE GOVERNMENT COUNCIL
Pursuant to Law on organization of the Government Council passed on July 14, 1960;
Pursuant to announcement dated May 12, 1977, of Government of the Socialist Republic of Vietnam, on sea areas and continental shelves of Vietnam;
To protect and exercise the sovereignty of the Socialist Republic of Vietnam for sea areas and continental shelves of Vietnam,
DECREES:
Chapter 1.
GENERAL PROVISIONS
Article 1. Foreign vessels stated in this Decree include military and non-military vessels, and all means of waterway transport, not belong to ownership of state, collectives or citizens of the Socialist Republic of Vietnam.
Article 2. All foreign vessels operating on sea areas of Vietnam (include entry, exit, moving, anchoring and do other jobs) must respect sovereignty of the Socialist Republic of Vietnam on each sea areas, must comply with full provisions of this Decree and rules, regimes, and other regulations related to the Socialist Republic of Vietnam, which are promulgated by competent agencies of Vietnam State.
Foreign vessels operate on sea areas of Vietnam must bear supervision and inspection of the Vietnam competent forces aiming to ensure the respect and compliance with this Decree and rules, regime, and other regulations related to the Socialist Republic of Vietnam.
Article 3. Foreign vessels which wish to go into sea areas of Vietnam must comply with the following procedures:
a. Non-military vessels used for transport and trading purposes wish to go into internal waters or ports of Vietnam must ask for permission of the Ministry of Transport of the Socialist Republic of Vietnam not less than 7 days before entry, and after having got the permission, they must notify the Ministry of Transport of the Socialist Republic of Vietnam within 24 hours before begin going into territorial waters of Vietnam.
b. Non-military vessels not used for transport or trading purposes wish to go into internal waters or ports of Vietnam must ask for permission of the Government of the Socialist Republic of Vietnam through diplomatic way not less than 15 days before entry, and after having got the permission, they must notify the Ministry of Transport of the Socialist Republic of Vietnam within 48 hours before begin going into territorial waters of Vietnam.
c. Military vessels (including war vessels and auxiliary vessels) wish to go into the contiguous zones of territorial waters of Vietnam must ask for permission of the Government of the Socialist Republic of Vietnam (through diplomatic way) not less than 30 days before entry, and after having got the permission, they must notify Military agencies of Vietnam (through the Ministry of Transport of the Socialist Republic of Vietnam) within 48 hours before begin going into the contiguous zone of territorial waters of Vietnam.
Article 4. Foreign vessels come Vietnam at invitation of the Socialist Republic of Vietnam will comply with separate regulation which does not belong to the adjustment scope of this Decree.
Article 5. Military vessels of a country permitted to enter territorial waters or internal waters of Vietnam will not be entitled to anchor more than three vessels in a same duration and duration of anchoring each vessel will not exceed one week, unless it has got permission of Government of the Socialist Republic of Vietnam.
Article 6. Foreign vessels in emergency cases which are not able to remedy such as suffering from natural disasters, accidents menacing safety of vessels and lives of persons on vessels… compulsorily stop or anchor in territorial waters of Vietnam, they must rapidly contact via all ways and immediately report to competent agencies of Vietnam in nearest places; they must bear all supervision of authorities of Vietnam to clarify the truthfulness of reasons as stated and must abide by all guidance of authorities of Vietnam.
Article 7. The Socialist Republic of Vietnam has a private right by itself to rescue foreign vessels suffering from accidents in internal waters, territorial waters and contiguous zones of territorial waters of Vietnam.
Chapter 2.
SPECIFIC PROVISIONS FOR FOREIGN VESSELS WHEN OPERATE ON SEA AREAS OF VIETNAM
Article 8. Foreign vessels on internal waters of Vietnam, apart from vessels’ national flags, must fly national flag of Vietnam at the top of highest pillar at the front of vessel; must comply fully with provisions on signal lamp in accordance with types of vessels and operations of vessels as promulgated by competent agencies of Vietnam and in compliance with general provisions of international law on transport by sea.
Article 9. On internal waters and territorial waters of Vietnam, foreign vessels must move rapidly, continuously, properly with the prescribed routes and corridors not go into banned zones.
Article 10. When foreign submarines (including military and civil submarines) enter the contiguous zones of territorial waters, territorial waters and internal waters of Vietnam, and when they anchor in ports of Vietnam, they are imperative to float, and fly flag of country where they have nationality. Foreign submarines must also comply fully with provisions applicable to foreign floating vessels of all kinds going on the contiguous zones of territorial waters, territorial waters and internal waters of Vietnam, and when they anchor in ports of Vietnam.
Article 11. Foreign vessels are not entitled to conduct survey or research of natural resources, creatures and non- creatures on territorial waters, the economic exclusive zones of Vietnam, for economic purpose or science purpose, unless they are permitted by Government of the Socialist Republic of Vietnam.
Article 12. Foreign vessels absolutely are not entitled to conduct activities of fishing, exploring, trading under all forms for any products in territorial waters, the contiguous zones of territorial waters and economic exclusive zones of Vietnam, unless they are permitted by Government of the Socialist Republic of Vietnam.
When moving in the economic exclusive zones of Vietnam, foreign fishing vessels must revoke nets and other fishing instruments in compartment, must turn into preservation position for all machines of exploring, detecting, inducing fishes, etc. . .
Article 13. Foreign vessels operating on sea areas of Vietnam (except foreign vessels under separate regulations stated in Article 4 above) will not be entitled to do the following things:
a. Having military exercises, use or threat of force to menace security, cause disorder of the Socialist Republic of Vietnam when vessels are in the contiguous zones of territorial waters, territorial waters, and internal waters of Vietnam;
b. Conducting activities damaging the defense, peace, security and order of the Socialist Republic of Vietnam; propagating to fight against the Socialist Republic of Vietnam.
c. Interfering the system of communication, machines and equipment for communication of all kinds of the Socialist Republic of Vietnam;
d. Using radars, ultrasonic generators, sight gauge, measuring machines, diving equipment and other devices for measuring, surveying, exploring geography, meteorology, sediment, depth or any exploration objective in internal waters and territorial waters of Vietnam;
e. Filming, taking photographs, using electronic, acoustic, optical equipment, radio, television and other technical means or equipment with the aim to gather intelligence information, recording the figures, documents related to security, defense or economy of Vietnam, when vessels are in internal waters, territorial waters, and contiguous zones of territorial waters of Vietnam, filming, taking photographs, drawing or noting on equipment, goods in ports, on military devices, economic facilities, science research facilities on way to ports or in ports;
g. Lifting off, landing or bringing flight means of all kinds up to vessels; taking from vessels, loading on or unloading the military devices of all kinds from vessels in internal waters, territorial waters and the contiguous zones of territorial waters of Vietnam without advance permission of the Government of the Socialist Republic of Vietnam;
h. Discharging mist smoke, firing guns of all kinds, launching signals, and using explosives in internal waters, territorial waters and contiguous zones of territorial waters of Vietnam for all purposes, unless firing signal bullet for SOS and firing for saluting in case of military vessels already permitted to visit the Socialist Republic of Vietnam.
i. Unloading, loading on vessels, and purchasing, selling, exchanging all products, goods, monetary, precious metals and stones, etc in contrary to provisions in rules on finance, customs, quarantine… of the Socialist Republic of Vietnam;
k. Bringing persons to leave out vessels or getting persons on board without compliance with rules of entry and exit of the Socialist Republic of Vietnam; harboring, colluding, covering or abetting for persons violating law of Vietnam in internal waters, territorial waters and the contiguous zones of territorial waters of Vietnam.
In emergency case, if it is necessary to take victims or persons on board, who they meet in internal waters, territorial waters and the contiguous zones of territorial waters of Vietnam, vessels must notify immediately authorities of Vietnam for information and settlement.
l. Obstructing activities of marine traffic, activities of fishing, aquaculture and exploiting sea resources of state, collectives or citizens of the Socialist Republic of Vietnam on sea areas of Vietnam;
m. Using signals to notify untrue accident, to stop, anchor arbitrarily in territorial waters or internal waters of Vietnam;
n. Moving alongside and in contact with other vessels, bringing persons and goods up board or leaving vessels at places improperly with regulation in scope of territorial waters, internal waters and ports of Vietnam. Canoes, motorboats and other means of transport of vessels launched for communication mission are only permitted to move in scope of areas prescribed by local authorities.
Article 14. Before foreign submarines equipped fixed weapon and mobile weapons, enter the contiguous zones of territorial waters, territorial waters and internal waters of Vietnam, they must turn all weapon to the preservation position, specified:
- Bullets must be removed from guns and stored in locked bullet box;
- Guns and gun locks must be applied grease and stored in bags or covered by canvas.
Article 15. Foreign vessels in internal waters of the Socialist Republic of Vietnam must seal all machines and equipment for communication and information, electronic technical observation … All acts to contact with any place, irrespective of contact to country which vessels have nationality, must be conducted through the communication center of ports of Vietnam where such vessels are anchoring. Activities of contact through radio, communication symbols, hand flags, etc with any object will be considered as acts of violating the sovereignty and security of the Socialist Republic of Vietnam.
Article 16. When going pass territorial waters and the contiguous zones of territorial waters of Vietnam, vessels operating by atomic energy, and vessels carrying radioactive substances or equipment using radioactive substances, vessels carrying or using other danger or hazardous substances must be ready to supply the necessary technical documents for authorities of Vietnam and must apply professional measures to prevent against danger and poison in accordance with provisions on prevention against poison, and environmental protection, and in accordance with international treaties.
Article 17. Foreign vessels do not throw waste and hazardous substances causing environmental pollution at sea areas and on land of the Socialist Republic of Vietnam and must apply fully measures to combat and prevent environmental pollution causing damages in current and long term to the human and creature survival.
In case of arising risk to happen serious pollution, the Socialist Republic of Vietnam will apply all measures to handle, prevent consequences, rescue persons on board or protect people and creatures in the threaten areas. Vessels causing pollution will be responsible and must pay compensation for damages in current and long term caused by pollution in accordance with law of the Socialist Republic of Vietnam.
Article 18. When foreign vessels entering or leaving ports of Vietnam, they compulsorily have to use Vietnamese navigator to navigate vessels under current rules of the Socialist Republic of Vietnam; and have to comply fully regulations of ports where vessels anchor.
Article 19. Apart from service vessels already permitted, foreign vessels do not go out or enter the safe area with width of 500 meters (counted from the outer point) of works, equipment, artificial islands, etc. . .used for exploration and exploitation of natural resources at sea beds and land under sea beds which Vietnam laid or permit to lay at sea areas and continental shelves of Vietnam. Vessels go pass outside of this safe area must also abide by rules of marine safety assurance to not damage to safety of such facilities.
Article 20. Apart from provisions in this Decree, foreign vessels must comply fully with other current rules for sea areas, ports, and land area on shore of the Socialist Republic of Vietnam.
Chapter 3.
CONTROL AND HANDLING
Article 21. The control at sea of the Socialist Republic of Vietnam is assigned to the following forces:
a. The People's Navy and units of the Vietnam People’s Army undertaking the island protection task;
b. The Vietnam Border Guard;
c. The Vietnam People's Police undertaking the maritime patrol task;
d. Half-armed forces on transport vessels and fishing vessels of Vietnam which are assigned duty in control under each requirement and wear clear signs;
e. Specialized control forces of customs, health and quarantine sectors of the Socialist Republic of Vietnam undertaking tasks of controlling each operational aspect of their sector.
Each control force at sea of Vietnam operates in scope of its authority and specialized field, and closely coordinates with other control forces to conduct necessary measures of control and supervision.
While doing task, vessels of control forces at sea of the Socialist Republic of Vietnam must fly flag of Vietnam and their special sectorial signal flag. Officials must wear badges, insignias in accordance with regulation. Officials of non-official control forces must have letters of credential of authorities and must wear clear signs.
Article 22. Control forces at sea of Vietnam have tasks:
a. To protect sovereignty and rights of the Socialist Republic of Vietnam at sea, to fight all plots and action s breaching sea areas and continental shelves of Vietnam under all forms;
b. To supervise, control foreign vessels operating in internal waters, territorial waters, the contiguous zones of territorial waters of Vietnam, involving their observance with this Decree and current rules and regulations on customs, health, finance, exit and entry, migration and immigration, etc of the Socialist Republic of Vietnam;
c. To help other agencies which have task of management at sea to implement well their control functions as assigned by state.
Article 23. To implement tasks specified in Article 22 of this Decree, control forces at sea of Vietnam have powers:
a. To command foreign vessels to fly national flag of Vietnam or country which vessels have nationality and answer necessary questions for identifying nationality of such vessels, the reason and legality of such vessels upon operating in internal waters, territorial waters and the contiguous zones of territorial waters of Vietnam or answer about doubtful signs in breaching rights of Vietnam in the exclusive economic zones and continental shelves of Vietnam;
b. To command foreign vessels to stop for examination, search upon having suspicious signs of breach to sovereignty as well as other rights of Vietnam in sea areas of Vietnam.
As necessary, they may warn or force such foreign vessels to change direction or leave the sea areas of Vietnam;
c. To make minutes, arrest vessels and offenders, collect all evidences of violation cases and extradite such vessels to the ports or wharf in order to hand over competent agencies for handling;
d. As necessary, to apply military measures on the violated vessels failing to abide by commands or have intend to fight commands by force; apply the chasing right on the vessels which conducted violations and run away.
Article 24. Foreign vessels violating provisions of this Decree or provisions set out for implementation of this Decree will be sanctioned by competent agencies of Vietnam with the following forms:
a. Warnings;
b. Revoking license, expelling vessel and seafarers out sea areas and territory of Vietnam;
c. Fines up to VND 10000 (calculated in a commonly-used foreign currency at the current foreign exchange rate).
If repeating violation or if violations mentioned above cause considerable damages or severe consequences, the offenders will be prosecuted before Court of Vietnam and adjudicated under current law of the Socialist Republic of Vietnam.
Article 25. Violations of foreign vessels in sea areas of Vietnam will be handled by the provincial and municipal People's Committees of the Socialist Republic of Vietnam.
This power includes the custody over vessels breaching law, exhibits, and involved persons for investigation and handling under forms of Article 24 stated above or making dossier to prosecute before court, depend on seriousness of acts violating law.
Article 26. Ministers of Transport, National Defense, Home Affairs, foreign trade, foreign affairs shall coordinate with relevant Ministries and chairpersons of the provincial and municipal People’s Committees in taking responsibilities for implementation of this Decree.
Le Thanh Nghi
(Signed)
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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30-CP
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Nghị định
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Hội đồng Chính phủ
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Lê Thanh Nghị
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29/01/1980
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13/02/1980
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AGREEMENT
ON TRADE, ECONOMIC AND TECHNICAL COOPERATION BETWEEN THE GOVERNMENT OF SOCIALIST REPUBLIC OF VIETNAM AND THE GOVERNMENT OF THE KINGDOM OF THAILAND (1978)
The Government of the Socialist Republic of Vietnam and the Government of the Kingdom of Thailand (hereinafter referred to as the Parties) wish to reinforce the direct trade and develop the economic and technical cooperation between the two countries on the basis of equal and mutually beneficial relationship;
The Parties agree with the following provisions:
TRADE
Article 1:
Both Parties will try to develop trading activities in accordance with the applicable law provisions of each Party.
Article 2:
Both Parties will provide the most favorable policies for each other in accordance with applicable law provisions on taxation and other charges related to the export and import between the two Parties.
Article 3:
Regulations in Article 2 do not obstruct any preferential treatment that the two Parties provide for:
a) Neighboring countries, in order to facilitate the trading activities across the border.
b) The accession to associations of cooperation in customs or free trade area or any agreement that leads to the establishment of organizations of which any of the two Parties is currently or possibly a member, or due to the accession to a multilateral agreement in economic cooperation.
Article 4:
1. All the trading activities between the two Parties shall be conformable to applicable law provisions of each Party on import and export control, foreign currency control and other activities related to the control of foreign trade and financial solution.
2. The two Parties must comply with their own current law provisions on import, export, foreign exchange and other applicable regulations, facilitate the achievement of targets for increasing the commercial value between the two Parties and in the sections related to goods on the Lists A and B of Appendixes 1 and 2 enclosed with this agreement. Such Lists may be modified under an agreement between the two Parties.
Article 5:
The payment between the Kingdom of Thailand and Socialist Republic of Vietnam shall be made using convertible foreign currencies.
Article 6:
In any case of necessity, two Parties of the contract will negotiate to find measures for reinforcing the bilateral commercial relationship or eliminating possible difficulties during the implementation of this agreement.
Article 7:
To promote the trading activities between the two Parties according to provisions and requirements that will be agreed by competent authorities, the two Parties must comply with their own current law provisions and, within their capability, enable each Party to participate in commercial fairs/exhibitions organized outside their territory by the other Party.
Article 8:
Two Parties must comply with their own current laws, excluding customs tax or other financial charges for goods originated in the other Party, including:
a) Goods displayed in fairs and exhibitions that must not be sold and must be re-exported according to regulations of each Party.
b) Sample goods used only for noncommercial purposes
Article 9:
Through competent organizations/agencies, the two Parties shall try their best to develop their economic and technical cooperation by possible methods conformable to their own law provisions.
The two Parties express a wish to cooperate by exchanging technical solutions, experts, specialists, highly skilled employees; the two Parties agreed to consider the gained experience and potentiality in every sector and at the request of each Party.
GENERAL PROVISIONS
Article 10:
In the furtherance of this Agreement, both Parties agreed to establish a joint committee so that in case of necessity and at the request of each Party, a meeting will be held in Hanoi or Bangkok to gradually achieve targets suitable for trade development and economic and technical cooperation between the two Parties and to solve possible issues.
Article 11:
The supply of goods between the two countries shall be carried out according to contracts or agreements between the two Parties and their companies and organizations.
Article 12:
The agreement will be effective for 1 year from the day on which it is signed and will be automatically extended every year until a Party issues a notification of its termination 3 months in advance.
This agreement shall be modified under an agreement between the two Parties.
Any modification or termination of this Agreement will be made without impact on rights and obligations arising in accordance with the Agreement before the day this Agreement is modified or terminated.
The signatories of this Agreement have been legally authorized by each Party.
This Agreement is signed on 11/01/1978 in Bangkok, sealed and is made in two copies in Thai, Vietnamese and English with equal value. If there is discrepancy in meaning between the Vietnamese copy and the Thai copy, the English contents shall prevail.
ON BEHAFT OF SOCIALIST REPUBLIC OF VIETNAM THE MINISTER OF FOREIGN AFFAIRS Nguyen Duy Trinh
ON BEHAFT OF THE KINGDOM OF THAILAND THE MINISTER OF FOREIGN AFFAIRS Pachariyangkun
This translation is made by THƯ VIỆN PHÁP LUẬT, Ho Chi Minh City, Vietnam and for reference purposes only. Its copyright is owned by THƯ VIỆN PHÁP LUẬT and protected under Clause 2, Article 14 of the Law on Intellectual Property.Your comments are always welcomed
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Khongso
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Điều ước quốc tế
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Chính phủ Cộng hoà xã hội chủ nghĩa Việt Nam, Chính phủ Vương quốc Thái Lan
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Nguyễn Duy Trinh, Pachariyangkun
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11/01/1978
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11/01/1978
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Đang cập nhật
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Đang cập nhật
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CONVENTION
RELATING TO THE DISTRIBUTION OF PROGRAMME-CARRYING SIGNALS TRANSMITTED BY SATELLITE DONE AT BRUSSELS ON MAY 21, 1974
The Contracting States,
Aware that the use of satellites for the distribution of programme-carrying signals is rapidly growing both in volume and geographical coverage;
Concerned that there is no world-wide system to prevent distributors from distributing programme-carrying signals transmitted by satellite which were not intended for those distributors, and that this lack is likely to hamper the use of satellite communications;
Recognizing, in this respect, the importance of the interests of authors, performers, producers of phonograms and broadcasting organizations;
Convinced that an international system should be established under which measures would be provided to prevent distributors from distributing programme-carrying signals transmitted by satellite which were not intended for those distributors;
Conscious of the need not to impair in any way international agreements already in force, including the International Telecommunication Convention and the Radio Regulations annexed to that Convention, and in particular in no way to prejudice wider acceptance of the Rome Convention of October 26, 1961, which affords protection to performers, producers of phonograms and broadcasting organizations,
Have agreed as follows:
Article 1
For the purposes of this Convention:
(i) "signal" is an electronically-generated carrier capable of transmitting programmes;
(ii) "programme" is a body of live or recorded material consisting of images, sounds or both, embodied in signals emitted for the purpose of ultimate distribution;
(iii) "satellite" is any device in extraterrestrial space capable of transmitting signals;
(iv) "emitted signal" or "signal emitted" is any programme-carrying signal that goes to or passes through a satellite;
(v) "derived signal" is a signal obtained by modifying the technical characteristics of the emitted signal, whether or not there have been one or more intervening fixations;
(vi) "originating organization" is the person or legal entity that decides what programme the emitted signals will carry;
(vii) "distributor" is the person or legal entity that decides that the transmission of the derived signals to the general public or any section thereof should take place;
(viii) "distribution" is the operation by which a distributor transmits derived signals to the general public or any section thereof.
Article 2
(1) Each Contracting State undertakes to take adequate measures to prevent the distribution on or from its territory of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended. This obligation shall apply where the originating organization is a national of another Contracting State and where the signal distributed is a derived signal.
(2) In any Contracting State in which the application of the measures referred to in paragraph (1) is limited in time, the duration thereof shall be fixed by its domestic law. The Secretary-General of the United Nations shall be notified in writing of such duration at the time of ratification, acceptance or accession, or if the domestic law comes into force or is changed thereafter, within six months of the coming into force of that law or of its modification.
(3) The obligation provided for in paragraph (1) shall not apply to the distribution of derived signals taken from signals which have already been distributed by a distributor for whom the emitted signals were intended.
Article 3
This Convention shall not apply where the signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.
Article 4
No Contracting State shall be required to apply the measures referred to in Article 2(1) where the signal distributed on its territory by a distributor for whom the emitted signal is not intended
(i) carries short excerpts of the programme carried by the emitted signal, consisting of reports of current events, but only to the extent justified by the informatory purpose of such excerpts, or
(ii) carries, as quotations, short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations, or
(iii) carries, where the said territory is that of a Contracting State regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations, a programme carried by the emitted signal, provided that the distribution is solely for the purpose of teaching, including teaching in the framework of adult education, or scientific research.
Article 5
No Contracting State shall be required to apply this Convention with respect to any signal emitted before this Convention entered into force for that State.
Article 6
This Convention shall in no way be interpreted to limit or prejudice the protection secured to authors, performers, producers of phonograms, or broadcasting organizations, under any domestic law or international agreement.
Article 7
This Convention shall in no way be interpreted as limiting the right of any Contracting State to apply its domestic law in order to prevent abuses of monopoly.
Article 8
(1) Subject to paragraph (2) and paragraph (3), no reservation to this Convention shall be permitted.
(2) Any Contracting State whose domestic law, on May 21, 1974, so provides may, by a written notification deposited with the Secretary-General of the United Nations, declare that, for its purposes, the words "where the originating organization is a national of another Contracting State" appearing in Article 2(1) shall be considered as if they were replaced by the words "where the signal is emitted from the territory of another Contracting State. "
(3)
(a) Any Contracting State which, on May 21, 1974, limits or denies protection with respect to the distribution of programme-carrying signals by means of wires, cable or other similar communications channels to subscribing members of the public may, by a written notification deposited with the Secretary-General of the United Nations, declare that, to the extent that and as long as its domestic law limits or denies protection, it will not apply this Convention to such distributions.
(b) Any State that has deposited a notification in notify the States referred to in Article 9(1), as well as the accordance with subparagraph (a) shall notify the Secretary-General of the United Nations in writing, within six months of their coming into force, of any changes in its domestic law whereby the reservation under that subparagraph becomes inapplicable or more limited in scope.
Article 9
(1) This Convention shall be deposited with the Secretary-General of the United Nations. It shall be open until March 31, 1975, for signature by any State that is a member of the United Nations, any of the Specialized Agencies brought into relationship with the United Nations, or the International Atomic Energy Agency, or is a party to the Statute of the International Court of Justice.
(2) This Convention shall be subject to ratification or acceptance by the signatory States. It shall be open for accession by any State referred to in paragraph (1).
(3) Instruments of ratification, acceptance or accession shall be deposited with the Secretary-General of the United Nations.
(4) It is understood that, at the time a State becomes bound by this Convention, it will be in a position in accordance with its domestic law to give effect to the provisions of the Convention.
Article 10
(1) This Convention shall enter into force three months after the deposit of the fifth instrument of ratification, acceptance or accession.
(2) For each State ratifying, accepting or acceding to this Convention after the deposit of the fifth instrument of ratification, acceptance or accession, this Convention shall enter into force three months after the deposit of its instrument.
Article 11
(1) Any Contracting State may denounce this Convention by written notification deposited with the Secretary-General of the United Nations.
(2) Denunciation shall take effect twelve months after the date on which the notification referred to in paragraph (1) is received.
Article 12
(1) This Convention shall be signed in a single copy in English, French, Russian and Spanish, the four texts being equally authentic.
(2) Official texts shall be established by the Director-General of the United Nations Educational, Scientific and Cultural Organization and the Director General of the World Intellectual Property Organization, after consultation with the interested Governments, in the Arabic, Dutch, German, Italian and Portuguese languages.
(3) The Secretary-General of the United Nations shall notify the States referred to in Article 9(1), as well as the Director-General of the United Nations Educational, Scientific and Cultural Organization, the Director General of the World Intellectual Property Organization, the Director-General of the International Labour Office and the Secretary-General of the International Telecommunication Union, of
(i) signatures to this Convention;
(ii) the deposit of instruments of ratification, acceptance or accession;
(iii) the date of entry into force of this Convention under Article 10(1);
(iv) the deposit of any notification relating to Article 2(2), Article 8(2) or Article 8(3), together with its text;
(v) the receipt of notifications of denunciation.
(4) The Secretary-General of the United Nations shall transmit two certified copies of this Convention to all States referred to in Article 9(1).
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***
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21/05/1974
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12/01/2006
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CONVENTION BERNE
FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS
PARIS ACT OF JULY 24, 1971,
TABLE OF CONTENTS
The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works,
Recognizing the importance of the work of the Revision
Conference held at Stockholm in 1967,
Have resolved to revise the Act adopted by the Stockholm Conference, while maintaining without change Articles 1 to 20 and 22 to 26 of that Act.
Consequently, the undersigned Plenipotentiaries, having presented their full powers, recognized as in good and due form, have agreed as follows:
Article 1
[Establishment of a Union]
The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.
Article 2
[Protected Works: 1. "Literary and artistic works"; 2. Possible requirement of fixation; 3. Derivative works; 4. Official texts; 5. Collections; 6. Obligation to protect; beneficiaries of protection; 7. Works of applied art and industrial designs; 8. News]
(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
(3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.
(4) It shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.
(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.
(6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.
(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
Article 2 bis
[Possible Limitation of Protection of Certain Works: 1. Certain speeches; 2. Certain uses of lectures and addresses; 3. Right to make collections of such works]
(1) It shall be a matter for legislation in the countries of the Union to exclude, wholly or in part, from the protection provided by the preceding Article political speeches and speeches delivered in the course of legal proceedings.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which lectures, addresses and other works of the same nature which are delivered in public may be reproduced by the press, broadcast, communicated to the public by wire and made the subject of public communication as envisaged in Article 11bis(1) of this Convention, when such use is justified by the informatory purpose.
(3) Nevertheless, the author shall enjoy the exclusive right of making a collection of his works mentioned in the preceding paragraphs.
Article 3
[Criteria of Eligibility for Protection: 1. Nationality of author; place of publication of work; 2. Residence of author; 3. "Published" works; 4. "Simultaneously published" works]
(1) The protection of this Convention shall apply to:
(a) authors who are nationals of one of the countries of the Union, for their works, whether published or not;
(b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union.
(2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country.
(3) The expression "published works" means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.
(4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.
Article 4
[Criteria of Eligibility for Protection of Cinematographic Works, Works of Architecture and Certain Artistic Works]
The protection of this Convention shall apply, even if the conditions of Article 3 are not fulfilled, to:
(a) authors of cinematographic works the maker of which has his headquarters or habitual residence in one of the countries of the Union;
(b) authors of works of architecture erected in a country of the Union or of other artistic works incorporated in a building or other structure located in a country of the Union.
Article 5
[Rights Guaranteed: 1. and 2. Outside the country of origin; 3. In the country of origin; 4. "Country of origin"]
(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.
(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.
(4) The country of origin shall be considered to be:
(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;
(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;
(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:
(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and
(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.
Article 6
[Possible Restriction of Protection in Respect of Certain Works of Nationals of Certain Countries Outside the Union: 1. In the country of the first publication and in other countries; 2. No retroactivity; 3. Notice]
(1) Where any country outside the Union fails to protect in an adequate manner the works of authors who are nationals of one of the countries of the Union, the latter country may restrict the protection given to the works of authors who are, at the date of the first publication thereof, nationals of the other country and are not habitually resident in one of the countries of the Union. If the country of first publication avails itself of this right, the other countries of the Union shall not be required to grant to works thus subjected to special treatment a wider protection than that granted to them in the country of first publication.
(2) No restrictions introduced by virtue of the preceding paragraph shall affect the rights which an author may have acquired in respect of a work published in a country of the Union before such restrictions were put into force.
(3) The countries of the Union which restrict the grant of copyright in accordance with this Article shall give notice thereof to the Director General of the World Intellectual Property Organization (hereinafter designated as "the Director General") by a written declaration specifying the countries in regard to which protection is restricted, and the restrictions to which rights of authors who are nationals of those countries are subjected. The Director General shall immediately communicate this declaration to all the countries of the Union.
Article 6 bis
[Moral Rights: 1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author's death; 3. Means of redress]
(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
Article 7
[Term of Protection: 1. Generally; 2. For cinematographic works; 3. For anonymous and pseudonymous works; 4. For photographic works and works of applied art; 5. Starting date of computation; 6. Longer terms; 7. Shorter terms; 8. Applicable law; "comparison" of terms]
(1) The term of protection granted by this Convention shall be the life of the author and fifty years after his death.
(2) However, in the case of cinematographic works, the countries of the Union may provide that the term of protection shall expire fifty years after the work has been made available to the public with the consent of the author, or, failing such an event within fifty years from the making of such a work, fifty years after the making.
(3) In the case of anonymous or pseudonymous works, the term of protection granted by this Convention shall expire fifty years after the work has been lawfully made available to the public. However, when the pseudonym adopted by the author leaves no doubt as to his identity, the term of protection shall be that provided in paragraph (1). If the author of an anonymous or pseudonymous work discloses his identity during the above-mentioned period, the term of protection applicable shall be that provided in paragraph (1). The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.
(4) It shall be a matter for legislation in the countries of the Union to determine the term of protection of photographic works and that of works of applied art in so far as they are protected as artistic works; however, this term shall last at least until the end of a period of twenty-five years from the making of such a work.
(5) The term of protection subsequent to the death of the author and the terms provided by paragraphs (2), (3) and (4) shall run from the date of death or of the event referred to in those paragraphs, but such terms shall always be deemed to begin on the first of January of the year following the death or such event.
(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.
(7) Those countries of the Union bound by the Rome Act of this Convention which grant, in their national legislation in force at the time of signature of the present Act, shorter terms of protection than those provided for in the preceding paragraphs shall have the right to maintain such terms when ratifying or acceding to the present Act.
(8) In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.
Article 7 bis
[Term of Protection for Works of Joint Authorship]
The provisions of the preceding Article shall also apply in the case of a work of joint authorship, provided that the terms measured from the death of the author shall be calculated from the death of the last surviving author.
Article 8
[Right of Translation]
Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.
Article 9
[Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings]
(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.
Article 10
[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author]
(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.
Article 10 bis
[Further Possible Free Uses of Works: 1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events]
(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.
Article 11
[Certain Rights in Dramatic and Musical Works: 1. Right of public performance and of communication to the public of a performance; 2. In respect of translations]
(1) Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing:
(i) the public performance of their works, including such public performance by any means or process;
(ii) any communication to the public of the performance of their works.
(2) Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.
Article 11 bis
[Broadcasting and Related Rights: 1. Broadcasting and other wireless communications, public communication of broadcast by wire or rebroadcast, public communication of broadcast by loudspeaker or analogous instruments; 2. Compulsory licenses; 3. Recording; ephemeral recordings]
(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;
(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;
(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.
(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.
(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.
Article 11 ter
[Certain Rights in Literary Works: 1. Right of public recitation and of communication to the public of a recitation; 2. In respect of translations]
(1) Authors of literary works shall enjoy the exclusive right of authorizing:
(i) the public recitation of their works, including such public recitation by any means or process;
(ii) any communication to the public of the recitation of their works.
(2) Authors of literary works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.
Article 12
[Right of Adaptation, Arrangement and Other Alteration]
Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.
Article 13
[Possible Limitation of the Right of Recording of Musical Works and Any Words Pertaining Thereto: 1. Compulsory licenses; 2. Transitory measures; 3. Seizure on importation of copies made without the author's permission]
(1) Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorized by the latter, to authorize the sound recording of that musical work, together with such words, if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of these authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.
(2) Recordings of musical works made in a country of the Union in accordance with Article 13(3) of the Conventions signed at Rome on June 2, 1928, and at Brussels on June 26, 1948, may be reproduced in that country without the permission of the author of the musical work until a date two years after that country becomes bound by this Act.
(3) Recordings made in accordance with paragraphs (1) and (2) of this Article and imported without permission from the parties concerned into a country where they are treated as infringing recordings shall be liable to seizure.
Article 14
[Cinematographic and Related Rights: 1. Cinematographic adaptation and reproduction; distribution; public performance and public communication by wire of works thus adapted or reproduced; 2. Adaptation of cinematographic productions; 3. No compulsory licenses]
(1) Authors of literary or artistic works shall have the exclusive right of authorizing:
(i) the cinematographic adaptation and reproduction of these works, and the distribution of the works thus adapted or reproduced;
(ii) the public performance and communication to the public by wire of the works thus adapted or reproduced.
(2) The adaptation into any other artistic form of a cinematographic production derived from literary or artistic works shall, without prejudice to the authorization of the author of the cinematographic production, remain subject to the authorization of the authors of the original works.
(3) The provisions of Article 13(1) shall not apply.
Article 14 bis
[Special Provisions Concerning Cinematographic Works: 1. Assimilation to "original" works; 2. Ownership; limitation of certain rights of certain contributors; 3. Certain other contributors]
(1) Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work shall be protected as an original work. The owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work, including the rights referred to in the preceding Article.
(2)
(a) Ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed.
(b) However, in the countries of the Union which, by legislation, include among the owners of copyright in a cinematographic work authors who have brought contributions to the making of the work, such authors, if they have undertaken to bring such contributions, may not, in the absence of any contrary or special stipulation, object to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of texts, of the work.
(c) The question whether or not the form of the undertaking referred to above should, for the application of the preceding subparagraph (b), be in a written agreement or a written act of the same effect shall be a matter for the legislation of the country where the maker of the cinematographic work has his headquarters or habitual residence. However, it shall be a matter for the legislation of the country of the Union where protection is claimed to provide that the said undertaking shall be in a written agreement or a written act of the same effect. The countries whose legislation so provides shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.
(d) By "contrary or special stipulation" is meant any restrictive condition which is relevant to the aforesaid undertaking.
(3) Unless the national legislation provides to the contrary, the provisions of paragraph (2)(b) above shall not be applicable to authors of scenarios, dialogues and musical works created for the making of the cinematographic work, or to the principal director thereof. However, those countries of the Union whose legislation does not contain rules providing for the application of the said paragraph (2)(b) to such director shall notify the Director General by means of a written declaration, which will be immediately communicated by him to all the other countries of the Union.
Article 14 ter
["Droit de suite" in Works of Art and Manuscripts: 1. Right to an interest in resales; 2. Applicable law; 3. Procedure]
(1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.
(2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.
(3) The procedure for collection and the amounts shall be matters for determination by national legislation.
Article 15
[Right to Enforce Protected Rights: 1. Where author's name is indicated or where pseudonym leaves no doubt as to author's identity; 2. In the case of cinematographic works; 3. In the case of anonymous and pseudonymous works; 4. In the case of certain unpublished works of unknown authorship]
(1) In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.
(2) The person or body corporate whose name appears on a cinematographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of the said work.
(3) In the case of anonymous and pseudonymous works, other than those referred to in paragraph (1) above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author's rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work.
(4)
(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.
(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.
Article 16
[Infringing Copies: 1. Seizure; 2. Seizure on importation; 3. Applicable law]
(1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection.
(2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected.
(3) The seizure shall take place in accordance with the legislation of each country.
Article 17
[Possibility of Control of Circulation, Presentation and Exhibition of Works]
The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.
Article 18
[Works Existing on Convention's Entry Into Force: 1. Protectable where protection not yet expired in country of origin; 2. Non-protectable where protection already expired in country where it is claimed; 3. Application of these principles; 4. Special cases]
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is concerned, the conditions of application of this principle.
(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.
Article 19
[Protection Greater than Resulting from Convention]
The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.
Article 20
[Special Agreements Among Countries of the Union]
The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.
Article 21
[Special Provisions Regarding Developing Countries: 1. Reference to Appendix; 2. Appendix part of Act]
(1) Special provisions regarding developing countries are included in the Appendix.
(2) Subject to the provisions of Article 28(1)(b), the Appendix forms an integral part of this Act.
Article 22
[Assembly: 1. Constitution and composition; 2. Tasks; 3. Quorum, voting, observers; 4. Convocation; 5. Rules of procedure]
(1)
(a) The Union shall have an Assembly consisting of those countries of the Union which are bound by Articles 22 to 26.
(b) The Government of each country shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.
(c) The expenses of each delegation shall be borne by the Government which has appointed it.
(2)
(a) The Assembly shall:
(i) deal with all matters concerning the maintenance and development of the Union and the implementation of this Convention;
(ii) give directions concerning the preparation for conferences of revision to the International Bureau of Intellectual Property (hereinafter designated as "the International Bureau") referred to in the Convention Establishing the World Intellectual Property Organization (hereinafter designated as "the Organization"), due account being taken of any comments made by those countries of the Union which are not bound by Articles 22 to 26;
iii) review and approve the reports and activities of the Director General of the Organization concerning the Union, and give him all necessary instructions concerning matters within the competence of the Union;
(iv) elect the members of the Executive Committee of the Assembly;
(v) review and approve the reports and activities of its Executive Committee, and give instructions to such Committee;
(vi) determine the program and adopt the biennial budget of the Union, and approve its final accounts;
(vii) adopt the financial regulations of the Union;
(viii) establish such committees of experts and working groups as may be necessary for the work of the Union;
(ix) determine which countries not members of the Union and which intergovernmental and international non-governmental organizations shall be admitted to its meetings as observers;
(x) adopt amendments to Articles 22 to 26;
(xi) take any other appropriate action designed to further the objectives of the Union;
(xii) exercise such other functions as are appropriate under this Convention;
(xiii) subject to its acceptance, exercise such rights as are given to it in the Convention establishing the Organization.
(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Assembly shall make its decisions after having heard the advice of the Coordination Committee of the Organization.
(3)
(a) Each country member of the Assembly shall have one vote.
(b) One-half of the countries members of the Assembly shall constitute a quorum.
(c) Notwithstanding the provisions of subparagraph (b), if, in any session, the number of countries represented is less than one-half but equal to or more than one-third of the countries members of the Assembly, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the following conditions are fulfilled. The International Bureau shall communicate the said decisions to the countries members of the Assembly which were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiration of this period, the number of countries having thus expressed their vote or abstention attains the number of countries which was lacking for attaining the quorum in the session itself, such decisions shall take effect provided that at the same time the required majority still obtains.
(d) Subject to the provisions of Article 26(2), the decisions of the Assembly shall require two-thirds of the votes cast.
(e) Abstentions shall not be considered as votes.
(f) A delegate may represent, and vote in the name of, one country only.
(g) Countries of the Union not members of the Assembly shall be admitted to its meetings as observers.
(4)
(a) The Assembly shall meet once in every second calendar year in ordinary session upon convocation by the Director General and, in the absence of exceptional circumstances, during the same period and at the same place as the General Assembly of the Organization.
(b) The Assembly shall meet in extraordinary session upon convocation by the Director General, at the request of the Executive Committee or at the request of one-fourth of the countries members of the Assembly.
(5) The Assembly shall adopt its own rules of procedure.
Article 23
[Executive Committee: 1. Constitution; 2. Composition; 3. Number of members; 4. Geographical distribution; special agreements; 5. Term, limits of re-eligibility, rules of election; 6. Tasks; 7. Convocation; 8. Quorum, voting; 9. Observers; 10. Rules of procedure]
(1) The Assembly shall have an Executive Committee.
(2)
(a) The Executive Committee shall consist of countries elected by the Assembly from among countries members of the Assembly. Furthermore, the country on whose territory the Organization has its headquarters shall, subject to the provisions of Article 25(7)(b), have an ex officio seat on the Committee.
(b) The Government of each country member of the Executive Committee shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.
(c) The expenses of each delegation shall be borne by the Government which has appointed it.
(3) The number of countries members of the Executive Committee shall correspond to one-fourth of the number of countries members of the Assembly. In establishing the number of seats to be filled, remainders after division by four shall be disregarded.
(4) In electing the members of the Executive Committee, the Assembly shall have due regard to an equitable geographical distribution and to the need for countries party to the Special Agreements which might be established in relation with the Union to be among the countries constituting the Executive Committee.
(5)
(a) Each member of the Executive Committee shall serve from the close of the session of the Assembly which elected it to the close of the next ordinary session of the Assembly.
(b) Members of the Executive Committee may be re-elected, but not more than two-thirds of them.
(c) The Assembly shall establish the details of the rules governing the election and possible re-election of the members of the Executive Committee.
(6)
(a) The Executive Committee shall:
(i) repare the draft agenda of the Assembly;
(ii) submit proposals to the Assembly respecting the draft program and biennial budget of the Union prepared by the Director General;
(iii) [deleted]
(iv) submit, with appropriate comments, to the Assembly the periodical reports of the Director General and the yearly audit reports on the accounts;
(v) in accordance with the decisions of the Assembly and having regard to circumstances arising between two ordinary sessions of the Assembly, take all necessary measures to ensure the execution of the program of the Union by the Director General;
(vi) perform such other functions as are allocated to it under this Convention.
(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Executive Committee shall make its decisions after having heard the advice of the Coordination Committee of the Organization.
(7)
(a) The Executive Committee shall meet once a year in ordinary session upon convocation by the Director General, preferably during the same period and at the same place as the Coordination Committee of the Organization.
(b) The Executive Committee shall meet in extraordinary session upon convocation by the Director General, either on his own initiative, or at the request of its Chairman or one-fourth of its members.
(8)
(a) Each country member of the Executive Committee shall have one vote.
(b) One-half of the members of the Executive Committee shall constitute a quorum.
(c) Decisions shall be made by a simple majority of the votes cast.
(d) Abstentions shall not be considered as votes.
(e) A delegate may represent, and vote in the name of, one country only.
(9) Countries of the Union not members of the Executive Committee shall be admitted to its meetings as observers.
(10) The Executive Committee shall adopt its own rules of procedure.
Article 24
[International Bureau: 1. Tasks in general, Director General; 2. General information; 3. Periodical; 4. Information to countries; 5. Studies and services; 6. Participation in meetings; 7. Conferences of revision; 8. Other tasks]
(1)
(a) The administrative tasks with respect to the Union shall be performed by the International Bureau, which is a continuation of the Bureau of the Union united with the Bureau of the Union established by the International Convention for the Protection of Industrial Property.
(b) In particular, the International Bureau shall provide the secretariat of the various organs of the Union.
(c) The Director General of the Organization shall be the chief executive of the Union and shall represent the Union.
(2) The International Bureau shall assemble and publish information concerning the protection of copyright. Each country of the Union shall promptly communicate to the International Bureau all new laws and official texts concerning the protection of copyright.
(3) The International Bureau shall publish a monthly periodical.
(4) The International Bureau shall, on request, furnish information to any country of the Union on matters concerning the protection of copyright.
(5) The International Bureau shall conduct studies, and shall provide services, designed to facilitate the protection of copyright.
(6) The Director General and any staff member designated by him shall participate, without the right to vote, in all meetings of the Assembly, the Executive Committee and any other committee of experts or working group. The Director General, or a staff member designated by him, shall be ex officio secretary of these bodies.
(7)
(a) The International Bureau shall, in accordance with the directions of the Assembly and in cooperation with the Executive Committee, make the preparations for the conferences of revision of the provisions of the Convention other than Articles 22 to 26.
(b) The International Bureau may consult with intergovernmental and international non-governmental organizations concerning preparations for conferences of revision.
(c) The Director General and persons designated by him shall take part, without the right to vote, in the discussions at these conferences.
(8) The International Bureau shall carry out any other tasks assigned to it.
Article 25
[Finances: 1. Budget; 2. Coordination with other Unions; 3. Resources; 4. Contributions; possible extension of previous budget; 5. Fees and charges; 6. Working capital fund; 7. Advances by host Government; 8. Auditing of accounts]
(1)
(a) The Union shall have a budget.
(b) The budget of the Union shall include the income and expenses proper to the Union, its contribution to the budget of expenses common to the Unions, and, where applicable, the sum made available to the budget of the Conference of the Organization.
(c) Expenses not attributable exclusively to the Union but also to one or more other Unions administered by the Organization shall be considered as expenses common to the Unions. The share of the Union in such common expenses shall be in proportion to the interest the Union has in them.
(2) The budget of the Union shall be established with due regard to the requirements of coordination with the budgets of the other Unions administered by the Organization.
(3) The budget of the Union shall be financed from the following sources:
(i) contributions of the countries of the Union;
(ii) fees and charges due for services performed by the International Bureau in relation to the Union;
(iii) sale of, or royalties on, the publications of the International Bureau concerning the Union;
(iv) gifts, bequests, and subventions;
(v) rents, interests, and other miscellaneous income.
(4)
(a) For the purpose of establishing its contribution towards the budget, each country of the Union shall belong to a class, and shall pay its annual contributions on the basis of a number of units fixed as follows:
Class I 25
Class II 20
Class III 15
Class IV 10
Class V 5
Class VI 3
Class VII 1
(b) Unless it has already done so, each country shall indicate, concurrently with depositing its instrument of ratification or accession, the class to which it wishes to belong. Any country may change class. If it chooses a lower class, the country must announce it to the Assembly at one of its ordinary sessions. Any such change shall take effect at the beginning of the calendar year following the session.
(c) The annual contribution of each country shall be an amount in the same proportion to the total sum to be contributed to the annual budget of the Union by all countries as the number of its units is to the total of the units of all contributing countries.
(d) Contributions shall become due on the first of January of each year.
(e) A country which is in arrears in the payment of its contributions shall have no vote in any of the organs of the Union of which it is a member if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. However, any organ of the Union may allow such a country to continue to exercise its vote in that organ if, and as long as, it is satisfied that the delay in payment is due to exceptional and unavoidable circumstances.
(f) If the budget is not adopted before the beginning of a new financial period, it shall be at the same level as the budget of the previous year, in accordance with the financial regulations.
(5) The amount of the fees and charges due for services rendered by the International Bureau in relation to the Union shall be established, and shall be reported to the Assembly and the Executive Committee, by the Director General.
(6)
(a) The Union shall have a working capital fund which shall be constituted by a single payment made by each country of the Union. If the fund becomes insufficient, an increase shall be decided by the Assembly.
(b) The amount of the initial payment of each country to the said fund or of its participation in the increase thereof shall be a proportion of the contribution of that country for the year in which the fund is established or the increase decided.
(c) The proportion and the terms of payment shall be fixed by the Assembly on the proposal of the Director General and after it has heard the advice of the Coordination Committee of the Organization.
(7)
(a) In the headquarters agreement concluded with the country on the territory of which the Organization has its headquarters, it shall be provided that, whenever the working capital fund is insufficient, such country shall grant advances. The amount of these advances and the conditions on which they are granted shall be the subject of separate agreements, in each case, between such country and the Organization. As long as it remains under the obligation to grant advances, such country shall have an ex officio seat on the Executive Committee.
(b) The country referred to in subparagraph (a) and the Organization shall each have the right to denounce the obligation to grant advances, by written notification. Denunciation shall take effect three years after the end of the year in which it has been notified.
(8) The auditing of the accounts shall be effected by one or more of the countries of the Union or by external auditors, as provided in the financial regulations. They shall be designated, with their agreement, by the Assembly.
Article 26
[Amendments: 1. Provisions susceptible of amendment by the Assembly; proposals; 2. Adoption; 3. Entry into force]
(1) Proposals for the amendment of Articles 22, 23, 24, 25, and the present Article, may be initiated by any country member of the Assembly, by the Executive Committee, or by the Director General. Such proposals shall be communicated by the Director General to the member countries of the Assembly at least six months in advance of their consideration by the Assembly.
(2) Amendments to the Articles referred to in paragraph (1) shall be adopted by the Assembly. Adoption shall require three-fourths of the votes cast, provided that any amendment of Article 22, and of the present paragraph, shall require four-fifths of the votes cast.
(3) Any amendment to the Articles referred to in paragraph (1) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of the countries members of the Assembly at the time it adopted the amendment. Any amendment to the said Articles thus accepted shall bind all the countries which are members of the Assembly at the time the amendment enters into force, or which become members thereof at a subsequent date, provided that any amendment increasing the financial obligations of countries of the Union shall bind only those countries which have notified their acceptance of such amendment.
Article 27
[Revision: 1. Objective; 2. Conferences; 3. Adoption]
(1) This Convention shall be submitted to revision with a view to the introduction of amendments designed to improve the system of the Union.
(2) For this purpose, conferences shall be held successively in one of the countries of the Union among the delegates of the said countries.
(3) Subject to the provisions of Article 26 which apply to the amendment of Articles 22 to 26, any revision of this Act, including the Appendix, shall require the unanimity of the votes cast.
Article 28
[Acceptance and Entry Into Force of Act for Countries of the Union: 1. Ratification, accession; possibility of excluding certain provisions; withdrawal of exclusion; 2. Entry into force of Articles 1 to 21 and Appendix; 3. Entry into force of Articles 22 to 38]
(1)
(a) Any country of the Union which has signed this Act may ratify it, and, if it has not signed it, may accede to it. Instruments of ratification or accession shall be deposited with the Director General.
(b) Any country of the Union may declare in its instrument of ratification or accession that its ratification or accession shall not apply to Articles 1 to 21 and the Appendix, provided that, if such country has previously made a declaration under Article VI(1) of the Appendix, then it may declare in the said instrument only that its ratification or accession shall not apply to Articles 1 to 20.
(c) Any country of the Union which, in accordance with subparagraph (b), has excluded provisions therein referred to from the effects of its ratification or accession may at any later time declare that it extends the effects of its ratification or accession to those provisions. Such declaration shall be deposited with the Director General.
(2)
(a)Articles 1 to 21 and the Appendix shall enter into force three months after both of the following two conditions are fulfilled:
(i) at least five countries of the Union have ratified or acceded to this Act without making a declaration under paragraph (1)(b),
(ii) France, Spain, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, have become bound by the Universal Copyright Convention as revised at Paris on July 24, 1971.
(b) The entry into force referred to in subparagraph (a) shall apply to those countries of the Union which, at least three months before the said entry into force, have deposited instruments of ratification or accession not containing a declaration under paragraph (1)(b).
(c) With respect to any country of the Union not covered by subparagraph (b) and which ratifies or accedes to this Act without making a declaration under paragraph (1)(b), Articles 1 to 21 and the Appendix shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 1 to 21 and the Appendix shall enter into force with respect to that country on the date thus indicated.
(d) The provisions of subparagraphs (a) to (c) do not affect the application of Article VI of the Appendix.
(3) With respect to any country of the Union which ratifies or accedes to this Act with or without a declaration made under paragraph (1)(b), Articles 22 to 38 shall enter into force three months after the date on which the Director General has notified the deposit of the relevant instrument of ratification or accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, Articles 22 to 38 shall enter into force with respect to that country on the date thus indicated.
Article 29
[Acceptance and Entry Into Force for Countries Outside the Union: 1. Accession; 2. Entry into force]
(1) Any country outside the Union may accede to this Act and thereby become party to this Convention and a member of the Union. Instruments of accession shall be deposited with the Director General.
(2)
(a) Subject to subparagraph (b), this Convention shall enter into force with respect to any country outside the Union three months after the date on which the Director General has notified the deposit of its instrument of accession, unless a subsequent date has been indicated in the instrument deposited. In the latter case, this Convention shall enter into force with respect to that country on the date thus indicated.
(b) If the entry into force according to subparagraph (a) precedes the entry into force of Articles 1 to 21 and the Appendix according to Article 28(2)(a), the said country shall, in the meantime, be bound, instead of by Articles 1 to 21 and the Appendix, by Articles 1 to 20 of the Brussels Act of this Convention.
Article 29 bis
[Effect of Acceptance of Act for the Purposes of Article 14(2) of the WIPO Convention]
Ratification of or accession to this Act by any country not bound by Articles 22 to 38 of the Stockholm Act of this Convention shall, for the sole purposes of Article 14(2) of the Convention establishing the Organization, amount to ratification of or accession to the said Stockholm Act with the limitation set forth in Article 28(1)(b)(i) thereof.
Article 30
[Reservations: 1. Limits of possibility of making reservations; 2. Earlier reservations; reservation as to the right of translation; withdrawal of reservation]
(1) Subject to the exceptions permitted by paragraph (2) of this Article, by Article 28(1)(b), by Article 33(2), and by the Appendix, ratification or accession shall automatically entail acceptance of all the provisions and admission to all the advantages of this Convention.
(2)
(a) Any country of the Union ratifying or acceding to this Act may, subject to Article V(2) of the Appendix, retain the benefit of the reservations it has previously formulated on condition that it makes a declaration to that effect at the time of the deposit of its instrument of ratification or accession.
(b) Any country outside the Union may declare, in acceding to this Convention and subject to Article V(2) of the Appendix, that it intends to substitute, temporarily at least, for Article 8 of this Act concerning the right of translation, the provisions of Article 5 of the Union Convention of 1886, as completed at Paris in 1896, on the clear understanding that the said provisions are applicable only to translations into a language in general use in the said country. Subject to Article I(6)(b) of the Appendix, any country has the right to apply, in relation to the right of translation of works whose country of origin is a country availing itself of such a reservation, a protection which is equivalent to the protection granted by the latter country.
(c) Any country may withdraw such reservations at any time by notification addressed to the Director General.
Article 31
[Applicability to Certain Territories: 1. Declaration; 2. Withdrawal of declaration; 3. Effective date; 4. Acceptance of factual situations not implied]
(1) Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification at any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible.
(2) Any country which has made such a declaration or given such a notification may, at any time, notify the Director General that this Convention shall cease to be applicable to all or part of such territories.
(3)
(a) Any declaration made under paragraph (1) shall take effect on the same date as the ratification or accession in which it was included, and any notification given under that paragraph shall take effect three months after its notification by the Director General.
(b) Any notification given under paragraph (2) shall take effect twelve months after its receipt by the Director General.
(4) This Article shall in no way be understood as implying the recognition or tacit acceptance by a country of the Union of the factual situation concerning a territory to which this Convention is made applicable by another country of the Union by virtue of a declaration under paragraph (1).
Article 32
[Applicability of this Act and of Earlier Acts: 1. As between countries already members of the Union; 2. As between a country becoming a member of the Union and other countries members of the Union; 3. Applicability of the Appendix in Certain Relations]
(1) This Act shall, as regards relations between the countries of the Union, and to the extent that it applies, replace the Berne Convention of September 9, 1886, and the subsequent Acts of revision. The Acts previously in force shall continue to be applicable, in their entirety or to the extent that this Act does not replace them by virtue of the preceding sentence, in relations with countries of the Union which do not ratify or accede to this Act.
(2) Countries outside the Union which become party to this Act shall, subject to paragraph (3), apply it with respect to any country of the Union not bound by this Act or which, although bound by this Act, has made a declaration pursuant to Article 28(1)(b). Such countries recognize that the said country of the Union, in its relations with them:
(i) may apply the provisions of the most recent Act by which it is bound, and
(ii) subject to Article I(6) of the Appendix, has the right to adapt the protection to the level provided for by this Act.
(3) Any country which has availed itself of any of the faculties provided for in the Appendix may apply the provisions of the Appendix relating to the faculty or faculties of which it has availed itself in its relations with any other country of the Union which is not bound by this Act, provided that the latter country has accepted the application of the said provisions.
Article 33
[Disputes: 1. Jurisdiction of the International Court of Justice; 2. Reservation as to such jurisdiction; 3. Withdrawal of reservation]
(1) Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement. The country bringing the dispute before the Court shall inform the International Bureau; the International Bureau shall bring the matter to the attention of the other countries of the Union.
(2) Each country may, at the time it signs this Act or deposits its instrument of ratification or accession, declare that it does not consider itself bound by the provisions of paragraph (1). With regard to any dispute between such country and any other country of the Union, the provisions of paragraph (1) shall not apply.
(3) Any country having made a declaration in accordance with the provisions of paragraph (2) may, at any time, withdraw its declaration by notification addressed to the Director General.
Article 34
[Closing of Certain Earlier Provisions: 1. Of earlier Acts; 2. Of the Protocol to the Stockholm Act]
(1) Subject to Article 29bis, no country may ratify or accede to earlier Acts of this Convention once Articles 1 to 21 and the Appendix have entered into force.
(2) Once Articles 1 to 21 and the Appendix have entered into force, no country may make a declaration under Article 5 of the Protocol Regarding Developing Countries attached to the Stockholm Act.
Article 35
[Duration of the Convention; Denunciation: 1. Unlimited duration; 2. Possibility of denunciation; 3. Effective date of denunciation; 4. Moratorium on denunciation]
(1) This Convention shall remain in force without limitation as to time.
(2) Any country may denounce this Act by notification addressed to the Director General. Such denunciation shall constitute also denunciation of all earlier Acts and shall affect only the country making it, the Convention remaining in full force and effect as regards the other countries of the Union.
(3) Denunciation shall take effect one year after the day on which the Director General has received the notification.
(4) The right of denunciation provided by this Article shall not be exercised by any country before the expiration of five years from the date upon which it becomes a member of the Union.
Article 36
[Application of the Convention: 1. Obligation to adopt the necessary measures; 2. Time from which obligation exists]
(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention.
(2) It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.
Article 37
[Final Clauses: 1. Languages of the Act; 2. Signature; 3. Certified copies; 4. Registration; 5. Notifications]
(1)
(a) This Act shall be signed in a single copy in the French and English languages and, subject to paragraph (2), shall be deposited with the Director General.
(b) Official texts shall be established by the Director General, after consultation with the interested Governments, in the Arabic, German, Italian, Portuguese and Spanish languages, and such other languages as the Assembly may designate.
(c) In case of differences of opinion on the interpretation of the various texts, the French text shall prevail.
(2) This Act shall remain open for signature until January 31, 1972. Until that date, the copy referred to in paragraph (1)(a) shall be deposited with the Government of the French Republic.
(3) The Director General shall certify and transmit two copies of the signed text of this Act to the Governments of all countries of the Union and, on request, to the Government of any other country.
(4) The Director General shall register this Act with the Secretariat of the United Nations.
(5) The Director General shall notify the Governments of all countries of the Union of signatures, deposits of instruments of ratification or accession and any declarations included in such instruments or made pursuant to Articles 28(1)(c), 30(2)(a) and (b), and 33(2), entry into force of any provisions of this Act, notifications of denunciation, and notifications pursuant to Articles 30(2)(c), 31(1) and (2), 33(3), and 38(1), as well as the Appendix.
Article 38
[Transitory Provisions: 1. Exercise of the "five-year privilege"; 2. Bureau of the Union, Director of the Bureau; 3. Succession of Bureau of the Union]
(1) Countries of the Union which have not ratified or acceded to this Act and which are not bound by Articles 22 to 26 of the Stockholm Act of this Convention may, until April 26, 1975, exercise, if they so desire, the rights provided under the said Articles as if they were bound by them. Any country desiring to exercise such rights shall give written notification to this effect to the Director General; this notification shall be effective on the date of its receipt. Such countries shall be deemed to be members of the Assembly until the said date.
(2) As long as all the countries of the Union have not become Members of the Organization, the International Bureau of the Organization shall also function as the Bureau of the Union, and the Director General as the Director of the said Bureau.
(3) Once all the countries of the Union have become Members of the Organization, the rights, obligations, and property, of the Bureau of the Union shall devolve on the International Bureau of the Organization.
APPENDIX
[SPECIAL PROVISIONS REGARDING DEVELOPING COUNTRIES]
Article I
[Faculties Open to Developing Countries: 1. Availability of certain faculties; declaration: 2. Duration of effect of declaration, 3. Cessation of developing country status; 4. Existing stocks of copies; 5. Declarations concerning certain territories; 6. Limits of reciprocity]
(1) Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations which ratifies or accedes to this Act, of which this Appendix forms an integral part, and which, having regard to its economic situation and its social or cultural needs, does not consider itself immediately in a position to make provision for the protection of all the rights as provided for in this Act, may, by a notification deposited with the Director General at the time of depositing its instrument of ratification or accession or, subject to Article V(1)(c), at any time thereafter, declare that it will avail itself of the faculty provided for in Article II, or of the faculty provided for in Article III, or of both of those faculties. It may, instead of availing itself of the faculty provided for in Article II, make a declaration according to Article V(1)(a).
(2)
(a) Any declaration under paragraph (1) notified before the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the said period. Any such declaration may be renewed in whole or in part for periods of ten years each by a notification deposited with the Director General not more than fifteen months and not less than three months before the expiration of the ten-year period then running.
(b) Any declaration under paragraph (1) notified after the expiration of the period of ten years from the entry into force of Articles 1 to 21 and this Appendix according to Article 28(2) shall be effective until the expiration of the ten-year period then running. Any such declaration may be renewed as provided for in the second sentence of subparagraph (a).
(3) Any country of the Union which has ceased to be regarded as a developing country as referred to in paragraph (1) shall no longer be entitled to renew its declaration as provided in paragraph (2), and, whether or not it formally withdraws its declaration, such country shall be precluded from availing itself of the faculties referred to in paragraph (1) from the expiration of the ten-year period then running or from the expiration of a period of three years after it has ceased to be regarded as a developing country, whichever period expires later.
(4) Where, at the time when the declaration made under paragraph (1) or (2) ceases to be effective, there are copies in stock which were made under a license granted by virtue of this Appendix, such copies may continue to be distributed until their stock is exhausted.
(5) Any country which is bound by the provisions of this Act and which has deposited a declaration or a notification in accordance with Article 31(1) with respect to the application of this Act to a particular territory, the situation of which can be regarded as analogous to that of the countries referred to in paragraph (1), may, in respect of such territory, make the declaration referred to in paragraph (1) and the notification of renewal referred to in paragraph (2). As long as such declaration or notification remains in effect, the provisions of this Appendix shall be applicable to the territory in respect of which it was made.
(6)
(a) The fact that a country avails itself of any of the faculties referred to in paragraph (1) does not permit another country to give less protection to works of which the country of origin is the former country than it is obliged to grant under Articles 1 to 20.
(b) The right to apply reciprocal treatment provided for in Article 30(2)(b), second sentence, shall not, until the date on which the period applicable under Article I(3) expires, be exercised in respect of works the country of origin of which is a country which has made a declaration according to Article V(1)(a).
Article II
[Limitations on the Right of Translation: 1. Licenses grantable by competent authority; 2. to 4. Conditions allowing the grant of such licenses; 5. Purposes for which licenses may be granted; 6. Termination of licenses; 7. Works composed mainly of illustrations; 8. Works withdrawn from circulation; 9. Licenses for broadcasting organizations]
(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled, so far as works published in printed or analogous forms of reproduction are concerned, to substitute for the exclusive right of translation provided for in Article 8 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.
(2)
(a) Subject to paragraph (3), if, after the expiration of a period of three years, or of any longer period determined by the national legislation of the said country, commencing on the date of the first publication of the work, a translation of such work has not been published in a language in general use in that country by the owner of the right of translation, or with his authorization, any national of such country may obtain a license to make a translation of the work in the said language and publish the translation in printed or analogous forms of reproduction.
(b) A license under the conditions provided for in this Article may also be granted if all the editions of the translation published in the language concerned are out of print.
(3)
(a) In the case of translations into a language which is not in general use in one or more developed countries which are members of the Union, a period of one year shall be substituted for the period of three years referred to in paragraph (2)(a).
(b) Any country referred to in paragraph (1) may, with the unanimous agreement of the developed countries which are members of the Union and in which the same language is in general use, substitute, in the case of translations into that language, for the period of three years referred to in paragraph (2)(a) a shorter period as determined by such agreement but not less than one year. However, the provisions of the foregoing sentence shall not apply where the language in question is English, French or Spanish. The Director General shall be notified of any such agreement by the Governments which have concluded it.
(4)
(a) No license obtainable after three years shall be granted under this Article until a further period of six months has elapsed, and no license obtainable after one year shall be granted under this Article until a further period of nine months has elapsed
(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or
(ii) where the identity or the address of the owner of the right of translation is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.
(b) If, during the said period of six or nine months, a translation in the language in respect of which the application was made is published by the owner of the right of translation or with his authorization, no license under this Article shall be granted.
(5) Any license under this Article shall be granted only for the purpose of teaching, scholarship or research.
(6) If a translation of a work is published by the owner of the right of translation or with his authorization at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such translation is in the same language and with substantially the same content as the translation published under the license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.
(7) For works which are composed mainly of illustrations, a license to make and publish a translation of the text and to reproduce and publish the illustrations may be granted only if the conditions of Article III are also fulfilled.
(8) No license shall be granted under this Article when the author has withdrawn from circulation all copies of his work.
(9)
(a) A license to make a translation of a work which has been published in printed or analogous forms of reproduction may also be granted to any broadcasting organization having its headquarters in a country referred to in paragraph (1), upon an application made to the competent authority of that country by the said organization, provided that all of the following conditions are met:
(i) the translation is made from a copy made and
acquired in accordance with the laws of the said country;
(ii) the translation is only for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession;
(iii) the translation is used exclusively for the purposes referred to in condition (ii) through broadcasts made lawfully and intended for recipients on the territory of the said country, including broadcasts made through the medium of sound or visual recordings lawfully and exclusively made for the purpose of such broadcasts;
(iv) all uses made of the translation are without any commercial purpose.
(b) Sound or visual recordings of a translation which was made by a broadcasting organization under a license granted by virtue of this paragraph may, for the purposes and subject to the conditions referred to in subparagraph (a) and with the agreement of that organization, also be used by any other broadcasting organization having its headquarters in the country whose competent authority granted the license in question.
(c) Provided that all of the criteria and conditions set out in subparagraph (a) are met, a license may also be granted to a broadcasting organization to translate any text incorporated in an audio-visual fixation where such fixation was itself prepared and published for the sole purpose of being used in connection with systematic instructional activities.
(d) Subject to subparagraphs (a) to (c), the provisions of the preceding paragraphs shall apply to the grant and exercise of any license granted under this paragraph.
Article III
[Limitation on the Right of Reproduction: 1. Licenses grantable by competent authority; 2. to 5. Conditions allowing the grant of such licenses; 6. Termination of licenses; 7. Works to which this Article applies]
(1) Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Article 9 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.
(2)
(a) If, in relation to a work to which this Article applies by virtue of paragraph (7), after the expiration of
(i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or
(ii) any longer period determined by national legislation of the country referred to in paragraph (1), commencing on the same date,
copies of such edition have not been distributed in that country to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any national of such country may obtain a license to reproduce and publish such edition at that or a lower price for use in connection with systematic instructional activities.
(b) A license to reproduce and publish an edition which has been distributed as described in subparagraph (a) may also be granted under the conditions provided for in this Article if, after the expiration of the applicable period, no authorized copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in the country for comparable works.
(3) The period referred to in paragraph (2)(a)(i) shall be five years, except that
(i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;
(ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.
(4)
(a) No license obtainable after three years shall be granted under this Article until a period of six months has elapsed
(i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or
(ii) where the identity or the address of the owner of the right of reproduction is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.
(b) Where licenses are obtainable after other periods and Article IV(2) is applicable, no license shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application.
(c) If, during the period of six or three months referred to in subparagraphs (a) and (b), a distribution as described in paragraph (2)(a) has taken place, no license shall be granted under this Article.
(d) No license shall be granted if the author has withdrawn from circulation all copies of the edition for the reproduction and publication of which the license has been applied for.
(5) A license to reproduce and publish a translation of a work shall not be granted under this Article in the following cases:
(i) where the translation was not published by the owner of the right of translation or with his authorization, or
(ii) where the translation is not in a language in general use in the country in which the license is applied for.
(6) If copies of an edition of a work are distributed in the country referred to in paragraph (1) to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any license granted under this Article shall terminate if such edition is in the same language and with substantially the same content as the edition which was published under the said license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.
(7)
(a) Subject to subparagraph (b), the works to which this Article applies shall be limited to works published in printed or analogous forms of reproduction.
(b) This Article shall also apply to the reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of any incorporated text into a language in general use in the country in which the license is applied for, always provided that the audio-visual fixations in question were prepared and published for the sole purpose of being used in connection with systematic instructional activities.
Article IV
[Provisions Common to Licenses Under Articles II and III: 1 and 2. Procedure; 3. Indication of author and title of work; 4. Exportation of copies; 5. Notice; 6. Compensation]
(1) A license under Article II or Article III may be granted only if the applicant, in accordance with the procedure of the country concerned, establishes either that he has requested, and has been denied, authorization by the owner of the right to make and publish the translation or to reproduce and publish the edition, as the case may be, or that, after due diligence on his part, he was unable to find the owner of the right. At the same time as making the request, the applicant shall inform any national or international information center referred to in paragraph (2).
(2) If the owner of the right cannot be found, the applicant for a license shall send, by registered airmail, copies of his application, submitted to the authority competent to grant the license, to the publisher whose name appears on the work and to any national or international information center which may have been designated, in a notification to that effect deposited with the Director General, by the Government of the country in which the publisher is believed to have his principal place of business.
(3) The name of the author shall be indicated on all copies of the translation or reproduction published under a license granted under Article II or Article III. The title of the work shall appear on all such copies. In the case of a translation, the original title of the work shall appear in any case on all the said copies.
(4)
(a) No license granted under Article II or Article III shall extend to the export of copies, and any such license shall be valid only for publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for.
(b) For the purposes of subparagraph (a), the notion of export shall include the sending of copies from any territory to the country which, in respect of that territory, has made a declaration under Article I(5).
(c) Where a governmental or other public entity of a country which has granted a license to make a translation under Article II into a language other than English, French or Spanish sends copies of a translation published under such license to another country, such sending of copies shall not, for the purposes of subparagraph (a), be considered to constitute export if all of the following conditions are met:
(i) the recipients are individuals who are nationals of the country whose competent authority has granted the license, or organizations grouping such individuals;
(ii) the copies are to be used only for the purpose of teaching, scholarship or research;
(iii) the sending of the copies and their subsequent distribution to recipients is without any commercial purpose; and
(iv) the country to which the copies have been sent has agreed with the country whose competent authority has granted the license to allow the receipt, or distribution, or both, and the Director General has been notified of the agreement by the Government of the country in which the license has been granted.
(5) All copies published under a license granted by virtue of Article II or Article III shall bear a notice in the appropriate language stating that the copies are available for distribution only in the country or territory to which the said license applies.
(6)
(a) Due provision shall be made at the national level to ensure
(i) that the license provides, in favour of the owner of the right of translation or of reproduction, as the case may be, for just compensation that is consistent with standards of royalties normally operating on licenses freely negotiated between persons in the two countries concerned, and
(ii) payment and transmittal of the compensation: should national currency regulations intervene, the competent authority shall make all efforts, by the use of international machinery, to ensure transmittal in internationally convertible currency or its equivalent.
(b) Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be.
Article V
[Alternative Possibility for Limitation of the Right of Translation: 1. Regime provided for under the 1886 and 1896 Acts; 2. No possibility of change to regime under Article II; 3. Time limit for choosing the alternative possibility]
(1)
(a) Any country entitled to make a declaration that it will avail itself of the faculty provided for in Article II may, instead, at the time of ratifying or acceding to this Act:
(i) if it is a country to which Article 30(2)(a) applies, make a declaration under that provision as far as the right of translation is concerned;
(ii) if it is a country to which Article 30(2)(a) does not apply, and even if it is not a country outside the Union, make a declaration as provided for in Article 30(2)(b), first sentence.
(b) In the case of a country which ceases to be regarded as a developing country as referred to in Article I(1), a declaration made according to this paragraph shall be effective until the date on which the period applicable under Article I(3) expires.
(c) Any country which has made a declaration according to this paragraph may not subsequently avail itself of the faculty provided for in Article II even if it withdraws the said declaration.
(2) Subject to paragraph (3), any country which has availed itself of the faculty provided for in Article II may not subsequently make a declaration according to paragraph (1).
(3) Any country which has ceased to be regarded as a developing country as referred to in Article I(1) may, not later than two years prior to the expiration of the period applicable under Article I(3), make a declaration to the effect provided for in Article 30(2)(b), first sentence, notwithstanding the fact that it is not a country outside the Union. Such declaration shall take effect at the date on which the period applicable under Article I(3) expires.
Article VI
[Possibilities of applying, or admitting the application of, certain provisions of the Appendix before becoming bound by it: 1. Declaration; 2. Depository and effective date of declaration]
(1) Any country of the Union may declare, as from the date of this Act, and at any time before becoming bound by Articles 1 to 21 and this Appendix:
(i) if it is a country which, were it bound by Articles 1 to 21 and this Appendix, would be entitled to avail itself of the faculties referred to in Article I(1), that it will apply the provisions of Article II or of Article III or of both to works whose country of origin is a country which, pursuant to (ii) below, admits the application of those Articles to such works, or which is bound by Articles 1 to 21 and this Appendix; such declaration may, instead of referring to Article II, refer to Article V;
(ii) that it admits the application of this Appendix to works of which it is the country of origin by countries which have made a declaration under (i) above or a notification under Article I.
(2) Any declaration made under paragraph (1) shall be in writing and shall be deposited with the Director General. The declaration shall become effective from the date of its deposit.
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Điều ước quốc tế
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24/07/1971
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26/10/2004
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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CONVENTION ON ROAD TRAFFIC
The Contracting Parties,
Desiring to facilitate international road traffic and to increase road safety through the adoption of uniform traffic rules,
Have agreed upon the following provisions:
Chapter I
GENERAL PROVISIONS
ARTICLE 1
Definitions
For the purpose of this Convention the following expressions shall have the meanings hereby assigned to them:
(a) The "domestic legislation" of a Contracting Party means the entire body of national or local laws and regulations in force in the territory of that Contracting Party;
(b) A vehicle is said to be "in international traffic" in the territory of a State if:
(i) It is owned by a natural or legal person normally resident outside that State;
(ii) It is not registered in that State; and
(iii) It is temporarily imported into that State;
provided, however, that a Contracting Party may refuse to regard as being "in international traffic" a vehicle which has remained in its territory for more than one year without a substantial interruption, the duration of which may be fixed by that Contracting Party.
A combination of vehicles is said to be "in international traffic" if at least one of the vehicles in the combination conforms to the above definition;
(c) "Built-up area" means an area with entries and exits specially signposted as such, or otherwise defined in domestic legislation;
(d) "Road" means the entire surface of any way or street open to public traffic;
(e) "Carriageway" means the part of a road normally used by vehicular traffic; a road may comprise several carriageways clearly separated from one another by, for example, a dividing strip or a difference of level;
(f) On carriageways where one or more side lanes or tracks are reserved for use by certain vehicles, "edge of the carriageway" means, for other road- users, the edge of the remainder of the carriageway;
(g) "Lane" means any one of the longitudinal strips into which the carriageway is divisible, whether or not defined by longitudinal road markings, which is wide enough for one moving line of motor vehicles other than motor cycles;
(h) "Intersection" means any level crossroad, junction or fork, including the open areas formed by such crossroads, junctions or forks;
(i) "Level-crossing" means any level intersection between a road and a railway or tramway track with its own track formation;
(j) "Motorway" means a road specially designed and built for motor traffic, which does not serve properties bordering on it, and which:
(i) Is provided, except at special points or temporarily, with separate carriageways for the two directions of traffic, separated from each other either by a dividing strip not intended for traffic or, exceptionally, by other means;
(ii) Does not cross at level with any road, railway or tramway track, or footpath; and
(iii) Is specially signposted as a motorway;
(k) A vehicle is said to be:
(i) "Standing" if it is stationary for the time needed to pick up or set down persons or to load or unload goods; and
(ii) "Parked" if it is stationary for any reason other than the need to avoid interference with another road-user or collision with an obstruction or to comply with traffic regulations, and if the period during which the vehicle is stationary is not limited to the time needed to pick up or set down persons or goods;
Nevertheless, it shall be open to Contracting Parties to regard as "standing" any vehicle which is stationary within the meaning of subparagraph (ii) above for a period not exceeding that fixed by domestic legislation, and to regard as "parked" any vehicle which is stationary within the meaning of subparagraph (i) above for a period exceeding that fixed by domestic legislation;
(l) "Cycle" means any vehicle which has at least two wheels and is propelled solely by the muscular energy of the persons on that vehicle, in particular by means of pedals or hand-cranks;
(m) "Moped" means any two-wheeled or three-wheeled vehicle which is fitted with an internal combustion engine having a cylinder capacity not exceeding 50 cc and a maximum design speed not exceeding 50 km (30 miles) per hour. Contracting Parties are free, however, not to regard as mopeds, under their domestic legislation, vehicles which do not have the characteristics of a cycle with respect to their use, in particular the characteristic that they can be propelled by pedals, or whose maximum design speed, whose mass, or certain of whose engine characteristics exceed certain limits. Nothing in this definition shall be construed as preventing Contracting Parties from treating mopeds exactly as cycles in applying the provisions of their domestic legislation regarding road traffic;
(n) "Motor cycle" means any two-wheeled vehicle, with or without a side- car, which is equipped with a propelling engine. Contracting Parties may also treat as motor cycles in their domestic legislation three-wheeled vehicles whose unladen mass does not exceed 400 kg. The term "motor cycle" does not include mopeds, although Contracting Parties may, provided they make a declaration to this effect in conformity with Article 54, paragraph 2, of this Convention, treat mopeds as motor cycles for the purposes of the Convention;
(o) "Power-driven vehicle" means any self-propelled road vehicle, other than a moped in the territories of Contracting Parties which do not treat mopeds as motor cycles, and other than a rail-borne vehicle;
(p) "Motor vehicle" means any power-driven vehicle which is normally used for carrying persons or goods by road or for drawing, on the road, vehicles used for the carriage of persons or goods. This term embraces trolley-buses, that is to say, vehicles connected to an electric conductor and not rail-borne. It does not cover vehicles, such as agricultural tractors, which are only incidentally used for carrying persons or goods by road or for drawing, on the road, vehicles used for the carriage of persons or goods;
(q) "Trailer" means any vehicle designed to be drawn by a power-driven vehicle and includes semi-trailers;
(r) "Semi-trailer" means any trailer designed to be coupled to a motor vehicle in such a way that part of it rests on the motor vehicle and that a substantial part of its mass and of the mass of its load is borne by the motor vehicle;
(s) "Light trailer" means any trailer of a permissible maximum mass not exceeding 750 kg;
(t) "Combination of vehicles" means coupled vehicles which travel on the road as a unit;
(u) "Articulated vehicle" means a combination of vehicles comprising a motor vehicle and semi-trailer coupled to the motor vehicle;
(v) "Driver" means any person who drives a motor vehicle or other vehicle (including a cycle), or who guides cattle, singly or in herds, or flocks, or draught, pack or saddle animals on a road;
(w) "Permissible maximum mass" means the maximum mass of the laden vehicle declared permissible by the competent authority of the State in which the vehicle is registered;
(x) "Unladen mass" means the mass of the vehicle without crew, passengers or load, but with a full supply of fuel and with the tools which the vehicle normally carries;
(y) "Laden mass" means the actual mass of the vehicle as loaded, with the crew and passengers on board;
(z) "Direction of traffic" and "appropriate to the direction of traffic" mean the right-hand side if, under domestic legislation, the driver of a vehicle must allow an oncoming vehicle to pass on his left; otherwise these expressions mean the left-hand side;
(aa) The requirement that a driver shall "give way" to other vehicles means that he must not continue or resume his advance or manoeuvre if by so doing he might compel the drivers of other vehicles to change the direction or speed of their vehicle abruptly.
ARTICLE 2
Annexes to the Convention
The Annexes to this Convention, namely,
Annex 1: Exceptions to the obligation to admit motor vehicles and trailers in international traffic;
Annex 2: Registration number of motor vehicles and trailers in international traffic;
Annex 3: Distinguishing sign of motor vehicles and trailers in international traffic;
Annex 4: Identification marks of motor vehicles and trailers in international traffic;
Annex 5: Technical conditions concerning motor vehicles and trailers;
Annex 6: Domestic driving permit; and
Annex 7: International driving permit;
are integral parts of this Convention.
ARTICLE 3
Obligations of the Contracting Parties
1. (a) Contracting Parties shall take appropriate measures to ensure that the rules of the road in force in their territories conform in substance to the provisions of Chapter II of this Convention. Provided that the said rules are in no way incompatible with the said provisions:
(i) The said rules need not reproduce any of the said provisions which are applicable to situations that do not arise in the territories of the Contracting Parties in question;
(ii) The said rules may include provisions not contained in the said Chapter II.
(b) The provisions of this paragraph do not require Contracting Parties to provide penalties for any violation of those provisions of Chapter II which are reproduced in their rules of the road.
2. (a) Contracting Parties shall also take appropriate measures to ensure that the rules in force in their territories concerning the technical requirements to be satisfied by motor vehicles and trailers conform to the provisions of Annex 5 to this Convention; provided that they are in no way contrary to the safety principles governing the provisions of Annex 5, the said rules may contain provisions not contained in Annex 5. Contracting Parties shall also take appropriate measures to ensure that motor vehicles and trailers registered in their territories conform to the provisions of Annex 5 to this Convention when entering international traffic.
(b) The provisions of this paragraph do not impose any obligations on the Contracting Parties with respect to the rules in force in their territories concerning the technical requirements to be satisfied by power-driven vehicles which are not motor vehicles within the meaning of this Convention.
3. Subject to the exceptions provided for in Annex 1 to this Convention, Contracting Parties shall be bound to admit to their territories in international traffic motor vehicles and trailers which fulfil the conditions laid down in Chapter III of this Convention and whose drivers fulfil the conditions laid down in Chapter IV; they shall also be bound to recognize registration certificates issued in accordance with the provisions of Chapter III as prima facie evidence that the vehicles to which they refer fulfil the conditions laid down in the said Chapter III.
4. Measures which the Contracting Parties have taken or may take, either unilaterally or under bilateral or multilateral agreements, to admit to their territories in international traffic motor vehicles and trailers that do not satisfy all the conditions stated in Chapter III of this Convention and to recognize, in cases other than those specified in Chapter IV, the validity in their territories of driving permits issued in the territory of another Contracting Party shall be deemed to be in conformity with the object of this Convention.
5. Contracting Parties shall be bound to admit to their territories in international traffic cycles and mopeds which fulfil the technical conditions laid down in Chapter V of this Convention and whose drivers have their normal residence in the territory of another Contracting Party. No Contracting Party shall require the drivers of cycles or mopeds in international traffic to hold a driving permit; however, Contracting Parties which have declared in conformity with Article 54, paragraph 2, of this Convention that they treat mopeds as motor cycles may require the drivers of mopeds in international traffic to hold a driving permit.
5 bis. Contracting Parties will take the necessary measures to ensure that road safety education be provided on a systematic and continuous basis, particularly in schools at all levels.
5 ter. Whenever driving instruction for learner drivers is provided by professional driving establishments, domestic legislation shall lay down minimum requirements concerning the curriculum and the qualifications of the personnel responsible for providing such instruction.
6. Contracting Parties undertake to communicate to any Contracting Party, which may so request, the information necessary to ascertain the identity of the person in whose name a power-driven vehicle, or a trailer coupled to such a vehicle, is registered in their territories if the request submitted shows that the vehicle has been involved in an accident or the driver of this vehicle has seriously infringed road traffic rules and is thereby liable to important penalties or disqualification from driving in the territory of the Contracting Party submitting the request.
7. Measures which the Contracting Parties have taken or may take either unilaterally or under bilateral or multilateral agreements to facilitate international road traffic by simplifying Customs, police, health and other similar formalities or to ensure that Customs offices and posts at a given frontier point have the same competence and are kept open during the same hours shall be deemed to be in conformity with the object of this Convention.
8. Nothing in paragraphs 3, 5 and 7 of this Article shall affect the right of a Contracting Party to make the admission to its territory in international traffic of motor vehicles, trailers, mopeds and cycles, and of their drivers and occupants, subject to its regulations concerning the commercial carriage of passengers and goods, to its regulations concerning insurance of drivers against third-party risks, to its Customs regulations and, in general, to its regulations on matters other than road traffic.
ARTICLE 4
Signs and signals
Contracting Parties to this Convention which are not Contracting Parties to the Convention on Road Signs and Signals opened for signature at Vienna on the same day as this Convention undertake that:
(a) All road signs, traffic light signals and road markings installed in their territory shall form a coherent system and shall be designed and placed in such a way as to be easily recognizable;
(b) The number of types of sign shall be limited and signs shall be placed only at points where they are deemed useful;
(c) Danger warning signs shall be installed at a sufficient distance from obstructions to give drivers adequate warning;
(d) It shall be prohibited:
(i) To affix to a sign, to its support or to any other traffic control device anything not related to the purpose of such sign or device; if, however, Contracting Parties or subdivisions thereof authorize a non-profit making association to install informative signs, they may permit the emblem of that association to appear on the sign or on its support provided this does not make it less easy to understand the sign;
(ii) To install any board, notice, marking or device which might be confused with signs or other traffic control devices, might render them less visible or effective, or might dazzle road-users or distract their attention in a way prejudicial to traffic safety;
(iii) To install on pavements and verges devices or equipment which might unnecessarily obstruct the movement of pedestrians, particularly elderly or disabled persons.
Chapter II
RULES OF THE ROAD
ARTICLE 5
Status of signs and signals
1. Road-users shall comply with the instructions conveyed by road signs, traffic light signals and road markings even if the said instructions appear to contradict other traffic regulations.
2. Instructions conveyed by traffic light signals shall take precedence over those conveyed by road signs regulating priority.
ARTICLE 6
Instructions given by authorized officials
1. When they are directing traffic, authorized officials shall be easily identifiable at a distance, at night as well as by day.
2. Road-users shall promptly obey all instructions given by authorized officials directing traffic.
3. It is recommended that domestic legislation should provide that directions given by authorized officials directing traffic shall include the following:
(a) Arm raised upright: this gesture shall mean "attention, stop" for all road-users except drivers who are no longer able to stop with sufficient safety; further, if made at an intersection, this gesture shall not require drivers already on the intersection to stop;
(b) Arm or arms outstretched horizontally; this gesture shall constitute a stop signal for all road-users approaching from any direction which would cut across that indicated by the outstretched arm or arms; after making this gesture, the authorized official directing traffic may lower his arm or arms; this gesture shall likewise constitute a stop signal for drivers in front of or behind the official;
(c) Swinging red light: this gesture shall constitute a stop signal for road-users towards whom the light is directed.
4. The instructions given by authorized officials directing traffic shall take precedence over those conveyed by road signs, traffic light signals and road markings, and over traffic regulations.
ARTICLE 7
General rules
1. Road-users shall avoid any behaviour likely to endanger or obstruct traffic, to endanger persons, or to cause damage to public or private property.
2. It is recommended that domestic legislation should provide that road-users shall not obstruct traffic or risk making it dangerous by throwing, depositing or leaving any object or substance on the road or by creating any other obstruction on the road. If road-users have been unable to avoid creating an obstruction or danger in that way, they shall take the necessary steps to remove it as soon as possible and, if they cannot remove it immediately, to warn other road-users of its presence.
3. Drivers shall show extra care in relation to the most vulnerable road-users, such as pedestrians and cyclists and in particular children, elderly persons and the disabled.
4. Drivers shall take care that their vehicles do not inconvenience road-users or the occupants of properties bordering on the road, for example, by causing noise or raising dust or smoke where they can avoid doing so.
5. The wearing of safety belts is compulsory for drivers and passengers of motor vehicles, occupying seats equipped with such belts, save where exceptions are granted by domestic legislation.
ARTICLE 8
Drivers
1. Every moving vehicle or combination of vehicles shall have a driver.
2. It is recommended that domestic legislation should provide that pack, draught or saddle animals, and, except in such special areas as may be marked at the entry, cattle, singly or in herds, or flocks, shall have a driver.
3. Every driver shall possess the necessary physical and mental ability and be in a fit physical and mental condition to drive.
4. Every driver of a power-driven vehicle shall possess the knowledge and skill necessary for driving the vehicle; however, this requirement shall not be a bar to driving practice by learner-drivers in conformity with domestic legislation.
5. Every driver shall at all times be able to control his vehicle or to guide his animals.
ARTICLE 9
Flocks and herds
It is recommended that domestic legislation should provide that, save where exceptions are granted to facilitate their mass movement, flocks and herds should be divided into sections of moderate length spaced sufficiently far apart for the convenience of traffic.
ARTICLE 10
Position on the carriageway
1. The direction of traffic shall be the same on all roads in a State except, where appropriate, on the roads used solely or principally by through traffic between two other States.
2. Animals moving along the carriageway shall be kept as close as possible to the edge of the carriageway appropriate to the direction of traffic.
3. Without prejudice to the provisions to the contrary of Article 7, paragraph 1, Article 11, paragraph 6, and to other provisions of this Convention to the contrary, every driver of a vehicle shall, to the extent permitted by circumstances, keep his vehicle near the edge of the carriageway appropriate to the direction of traffic. However, Contracting Parties or subdivisions thereof may lay down more precise rules concerning the position of goods vehicles on the carriageway.
4. Where a road comprises two or three carriageways, no driver shall take the carriageway situated on the side opposite to that appropriate to the direction of traffic.
5. (a) On two-way carriageways having four or more lanes, no driver shall take the lanes situated entirely on the half of the carriageway opposite to the side appropriate to the direction of traffic.
(b) On two-way carriageways having three lanes, no driver shall take the lane situated at the edge of the carriageway opposite to that appropriate to the direction of traffic.
6. Without prejudice to the provisions of Article 11 and when an additional lane is indicated by a sign, drivers of vehicles moving slowly shall use that lane.
ARTICLE 11
Overtaking and movement of traffic in lines
1. (a) Drivers overtaking shall do so on the side opposite to that appropriate to the direction of traffic.
(b) However drivers shall overtake on the side appropriate to the direction of traffic if the driver to be overtaken has signalled his intention to turn to the side of the carriageway opposite to that appropriate to the direction of traffic and has moved his vehicle or animals over towards that side in order to turn to that side for the purpose of taking another road, to enter a property bordering on the road, or to stop on that side.
2. Before overtaking, every driver shall, without prejudice to the provisions of Article 7, paragraph 1, or to those of Article 14, of this Convention, make sure:
(a) That no driver who is following him has begun to overtake him;
(b) That the driver ahead of him in the same lane has not given warning of his intention to overtake another;
(c) That he can do it without endangering or interfering with the oncoming traffic making sure in particular that the lane which he will enter is free over a sufficient distance and that the relative speed of the two vehicles allows overtaking within a sufficiently short time; and
(d) That, except when using a lane closed to oncoming traffic, he will be able, without inconvenience to the road-user or road-users overtaken, to resume the position prescribed in Article 10, paragraph 3, of this Convention.
3. In pursuance of the provisions of paragraph 2 of this Article, overtaking on two-way carriageways is in particular prohibited when approaching the crest of a hill and, if visibility is inadequate, on bends, unless there are at these points lanes defined by longitudinal road markings and overtaking is carried out without leaving the lanes marked as closed to oncoming traffic.
4. When overtaking, a driver shall give the road-user or road-users overtaken a sufficiently wide berth.
5. (a) On carriageways with at least two lanes reserved for traffic moving in the direction in which he is proceeding, a driver who should be obliged, immediately or shortly after moving back to the position prescribed by Article 10, paragraph 3, of this Convention, to overtake again may, in order to perform that manoeuvre, and provided he makes sure he can do so without undue inconvenience to the drivers of faster vehicles approaching from behind, remain in the lane he has occupied for the first overtaking manoeuvre.
(b) However, Contracting Parties or subdivisions thereof shall be free not to apply the provisions of this paragraph to the drivers of cycles, mopeds, motor cycles and vehicles which are not motor vehicles within the meaning of this Convention, or to the drivers of motor vehicles whose permissible maximum mass exceeds 3, 500 kg or whose maximum speed, by design, cannot exceed 40 km (25 miles) per hour.
6. Where the provisions of subparagraph 5 (a) of this Article are applicable and the density of traffic is such that vehicles not only occupy the entire width of the carriageway reserved for traffic taking the direction in which they are moving but also are moving only at a speed which is governed by that of the vehicle preceding them in the line:
(a) Without prejudice to the provisions of paragraph 9 of this Article, the movement of the vehicles in one line at a higher speed than that of those in another shall not be deemed to constitute overtaking within the meaning of this Article;
(b) A driver not in the lane nearest to the edge of the carriageway appropriate to the direction of traffic may change lanes only in order to prepare to turn right or left or to park; however, this requirement shall not apply to changes of lane effected by drivers in accordance with domestic legislation resulting from the application of the provisions of paragraph 5 (b) of this Article.
7. When moving in lines as described in paragraphs 5 and 6 of this Article, drivers are forbidden, if the lanes are indicated on the carriageway by longitudinal markings, to straddle these markings.
8. Without prejudice to the provisions of paragraph 2 of this Article and to other restrictions which Contracting Parties or subdivisions thereof may lay down concerning overtaking at intersections and at level-crossings, no driver of a vehicle shall overtake a vehicle other than a two-wheeled cycle, a two-wheeled moped or a two-wheeled motor cycle without side-car:
(a) Immediately before or on an intersection other than a roundabout, except:
(i) In the case provided for in paragraph 1 (b) of this Article;
(ii) Where the road on which overtaking takes place has priority at the intersection;
(iii) Where traffic is directed at the intersection by an authorized official or by traffic light signals;
(b) Immediately before or on a level-crossing not equipped with gates or half-gates, provided however that Contracting Parties or subdivisions thereof shall be free to permit such overtaking at a level-crossing where road traffic is regulated by traffic light signals incorporating a positive signal authorizing vehicles to proceed.
9. A vehicle shall not overtake another vehicle which is approaching a pedestrian crossing marked on the carriageway or signposted as such, or which is stopped immediately before the crossing, otherwise than at a speed low enough to enable it to stop immediately if a pedestrian is on the crossing. Nothing in this paragraph shall be construed as preventing Contracting Parties or subdivisions thereof from prohibiting overtaking within a prescribed distance from a pedestrian crossing, or from imposing stricter requirements on a driver of a vehicle proposing to overtake another vehicle stopped immediately before such a crossing.
10. A driver who perceives that a driver following him wishes to overtake him shall, except in the case provided for in Article 16, paragraph 1 (b) of this Convention, keep close to the edge of the carriageway appropriate to the direction of traffic and refrain from accelerating. If, owing to the narrowness, profile or condition of the carriageway, taken in conjunction with the density of oncoming traffic, a vehicle which is slow or bulky or is required to observe a speed limit cannot be easily and safely overtaken, the driver of such vehicle shall slow down and if necessary pull in to the side as soon as possible in order to allow vehicles following him to overtake.
11. (a) Contracting Parties or subdivisions thereof may, on one-way carriageways and on two-way carriageways where at least two lanes in built-up areas and three lanes outside built-up areas are reserved for traffic in the same direction and are indicated by longitudinal markings:
(i) Allow vehicles in one lane to overtake on the side appropriate to the direction of traffic vehicles in another lane; and
(ii) Make inapplicable the provisions of Article 10, paragraph 3, of this Convention; provided that there are adequate restrictions on the possibility of changing lanes;
(b) In the case referred to in subparagraph (a) of this paragraph, without prejudice to the provisions of paragraph 9 of this Article, the manner of driving provided for shall not be deemed to constitute overtaking within the meaning of this Convention.
ARTICLE 12
Passing of oncoming traffic
1. When passing oncoming traffic, a driver shall leave sufficient lateral space and, if necessary, move close to the edge of the carriageway appropriate to the direction of traffic. If in so doing he finds his progress impeded by an obstruction or by the presence of other road-users, he shall slow down and if necessary stop to allow the oncoming road-user or road-users to pass.
2. On mountain roads and steep roads with characteristics similar to those of mountain roads, where the passing of oncoming traffic is impossible or difficult, it is the driver of the vehicle travelling downhill who should pull in to the side of the road in order to allow any vehicle proceeding uphill to pass, except where the arrangement of lay-bys to enable vehicles to pull in to the side of the road is such that, having regard to the speed and position of the vehicles, the vehicle proceeding uphill has a lay-by ahead of it and the need for one of the vehicles to reverse could be avoided if the vehicle proceeding uphill pulled in to that lay- by. Where one of the two vehicles which are about to pass is obliged to reverse in order to make passing possible, this manoeuvre shall be performed by the driver of the vehicle proceeding downhill unless it can manifestly be more easily performed by the driver of the vehicle proceeding uphill. However, Contracting Parties or subdivisions thereof may prescribe for certain vehicles or certain roads or sections of roads special rules differing from those laid down in this paragraph.
ARTICLE 13
Speed and distance between vehicles
1. Every driver of a vehicle shall in all circumstances have his vehicle under control so as to be able to exercise due and proper care and to be at all times in a position to perform all manoeuvres required of him. He shall, when adjusting the speed of his vehicle, pay constant regard to the circumstances, in particular the lie of the land, the state of the road, the condition and load of his vehicle, the weather conditions and the density of traffic, so as to be able to stop his vehicle within his range of forward vision and short of any foreseeable obstruction. He shall slow down and if necessary stop whenever circumstances so require, and particularly when visibility is not good.
2. Domestic legislation shall establish maximum speed limits for all roads. Domestic legislation shall also determine special speed limits applicable to certain categories of vehicles presenting a special danger, in particular by reason of their mass or their load. They may establish similar provisions for certain categories of drivers, in particular for new drivers.
3. The provisions set out in the first sentence of paragraph 2 may not apply to drivers of priority vehicles referred to in article 34, paragraph 2, or vehicles treated as such in domestic legislation.
4. No driver shall impede the normal progress of other vehicles by travelling abnormally slowly without proper cause.
5. The driver of a vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.
6. Outside built-up areas, in order to facilitate overtaking, drivers of vehicles or combinations of vehicles of more than 3, 500 kg permissible maximum mass, or of more than 10 m overall length, shall, except when they are overtaking or preparing to overtake, keep at such distance from power-driven vehicles ahead of them that other vehicles overtaking them can without danger move into the space in front of the overtaken vehicle. However, this provision shall not apply in very dense traffic or in circumstances where overtaking is prohibited. In addition:
(a) The competent authorities may exempt certain conveys of vehicles from this provision, or may similarly make it inapplicable on roads where two lanes are allotted to traffic in the direction concerned;
(b) Contracting Parties and subdivisions thereof may prescribe different figures from those given in this paragraph with respect to the vehicle characteristics concerned.
ARTICLE 14
General requirements governing manoeuvres
1. Any driver wishing to perform a manoeuvre such as pulling out of or into a line of parked vehicles, moving over to the right or to the left on the carriageway, or turning left or right into another road or into a property bordering on the road, shall first make sure that he can do so without risk of endangering other road-users travelling behind or ahead of him or about to pass him, having regard to their position, direction and speed.
2. Any driver wishing to make a U-turn or to reverse shall first make sure that he can do so without endangering or impeding other road-users.
3. Before turning or before a manoeuvre which involves moving laterally, the driver shall give clear and sufficient warning of his intention by means of the direction-indicator or direction-indicators on his vehicle, or, failing this, by giving if possible an appropriate signal with his arm. The warning given by the direction-indicator or direction-indicators shall continue to be given throughout the manoeuvre and shall cease as soon as the manoeuvre is completed.
ARTICLE 15
Special regulations relating to regular public-transport service vehicles
It is recommended that domestic legislation should provide that in built-up areas, in order to facilitate the movement of regular public-transport service vehicles, the drivers of other vehicles shall, subject to the provisions of Article 17, paragraph 1, of this Convention, slow down and if necessary stop in order to allow the public-transport vehicles to perform the manoeuvre required for moving off from stops marked as such. The provisions thus laid down by Contracting Parties or subdivisions thereof shall in no way affect the duty incumbent on drivers of public-transport vehicles to take, after having given warning by means of their direction-indicators of their intention to move off, the precautions necessary to avoid any risk of accident.
ARTICLE 16
Change of direction
1. Before turning right or left for the purpose of entering another road or entering a property bordering on the road, a driver shall, without prejudice to the provisions of Article 7, paragraph 1, and of Article 14, of this Convention:
(a) If he wishes to turn off on the side appropriate to the direction of traffic, keep as close as possible to the edge of the carriageway appropriate to that direction and make as tight a turn as possible;
(b) If he wishes to turn off on the other side, and subject to such other provisions as Contracting Parties or subdivisions thereof may enact for cycles and mopeds, move as close as possible to the centreline of the carriageway if it is a two-way carriageway or to the edge opposite to the side appropriate to the direction of traffic if it is a one-way carriageway and, if he wishes to enter another two-way road, make his turn so as to enter the carriageway of such other road on the side appropriate to the direction of traffic.
2. While changing direction, the driver shall, without prejudice to the provisions of Article 21 of this Convention regarding pedestrians, allow oncoming vehicles on the carriageway he is preparing to leave, and cycles and mopeds moving on cycle tracks crossing the carriageway he is about to enter, to pass.
ARTICLE 17
Slowing down
1. No driver of a vehicle shall brake abruptly unless it is necessary to do so for safety reasons.
2. Every driver intending to slow down to an appreciable extent shall, except where his slowing down is in response to an imminent danger, first make sure that he can do so without danger or undue inconvenience to other drivers. He shall also, unless he has made sure that there is no vehicle following him or that any following vehicle is a long way behind, give clear and timely warning of his intention by making an appropriate signal with his arm. However, this provision shall not apply if warning of slowing down in given by the vehicle's stop lights, referred to in Annex 5, paragraph 31, of this Convention.
ARTICLE 18
Intersections and obligation to give way
1. Every driver approaching an intersection shall exercise such extra care as may be appropriate to local conditions. Drivers of vehicles shall, in particular, drive at such a speed as to be able to stop to allow vehicles having the right of way to pass.
2. Every driver emerging from a path or an earth-track (dirt road) on to a road other than a path or an earth-track shall give way to vehicles travelling on that road. For the purposes of this Article the terms "path" and "earth-track" (dirt road) may be defined in domestic legislation.
3. Every driver emerging on to a road from a property bordering thereon shall give way to vehicles travelling on that road.
4. Subject to the provisions of paragraph 7 of this Article:
(a) In States where traffic keeps to the right the driver of a vehicle shall give way, at intersections other than those specified in paragraph 2 of this Article and in Article 25, paragraphs 2 and 4 of this Convention, to vehicles approaching from his right;
(b) Contracting Parties or subdivisions thereof in whose territories traffic keeps to the left shall be free to regulate the right of way at intersections as they see fit.
5. Even if traffic light signals authorize him to do so, a driver shall not enter an intersection if the density of traffic is such that he will probably be obliged to stop on the intersection, thereby obstructing or preventing the passage of cross traffic.
6. A driver who has entered an intersection where traffic is regulated by traffic light signals may clear the intersection without waiting for the way to be opened in the direction in which he wishes to proceed, provided that this does not impede the progress of other road-users moving in the open direction.
7. Drivers of vehicles not moving on rails shall give way to rail-borne vehicles.
ARTICLE 19
Level-crossings
Road-users shall exercise extra care in approaching and traversing level- crossings. In particular:
(a) Every driver of a vehicle shall drive at a moderate speed;
(b) Without prejudice to the obligation to obey an instruction to stop given by a light signal or a sound signal, no road-user shall enter a level- crossing at which the gates or half-gates are across the road or in process of being placed across the road, or at which the half-gates are in process of being raised;
(c) If a level-crossing is not equipped with gates, half-gates or light signals, no road-user shall enter it without making sure that no rail-borne vehicle is approaching;
(d) No driver shall enter a level-crossing without first ascertaining that he may not be obliged to stop on it;
(e) No road-user shall linger while traversing a level crossing; if a vehicle is compelled to stop, its driver shall endeavour to move it off the track, and, if he is unable to do so, immediately do everything he can to ensure that the drivers of rail-borne vehicles are warned of the danger in time.
ARTICLE 20
Rules applicable to pedestrians
1. Contracting Parties or subdivisions thereof shall be free not to enforce the provisions of this Article except in cases where pedestrian traffic on the carriageway would be dangerous or would obstruct vehicular traffic.
2. If, at the side of the carriageway, there are pavements (sidewalks) or suitable verges for pedestrians, pedestrians shall use them. Nevertheless, if they take the necessary precautions:
(a) Pedestrians pushing or carrying bulky objects may use the carriageway if they would seriously inconvenience other pedestrians by walking on the pavement (sidewalk) or verge;
(b) Groups of pedestrians led by a person in charge or forming a procession may walk on the carriageway.
3. If it is not possible to use pavements (sidewalks) or verges, or if none is provided, pedestrians may walk on the carriageway; where there is a cycle track and the density of traffic so permits, they may walk on the cycle track, but shall not obstruct cycle and moped traffic in doing so.
4. Pedestrians walking on the carriageway in accordance with paragraphs 2 and 3 of this Article shall keep as close as possible to the edge of the carriageway.
5. It is recommended that domestic legislation should provide as follows: pedestrians walking on the carriageway shall keep to the side opposite to that appropriate to the direction of traffic except where to do so places them in danger. However, persons pushing a cycle, a moped or a motor cycle, and groups of pedestrians led by a person in charge or forming a procession shall in all cases keep to the side of the carriageway appropriate to the direction of traffic. Unless they form a procession, pedestrians walking on the carriageway shall, by night or when visibility is poor and, by day, if the density of vehicular traffic so requires, walk in single file wherever possible.
6. (a) Pedestrians wishing to cross a carriageway shall not step on to it without exercising care; they shall use a pedestrian crossing whenever there is one nearby.
(b) In order to cross the carriageway at a pedestrian crossing signposted as such or indicated by markings on the carriageway:
(i) If the crossing is equipped with light signals for pedestrians, the latter shall obey the instructions given by such lights;
(ii) If the crossing is not equipped with such lights, but vehicular traffic is regulated by traffic light signals or by an authorized official, pedestrians shall not step onto the carriageway while the traffic light signal or the signal given by the authorized official indicates that vehicles may proceed along it;
(iii) At other pedestrian crossings, pedestrians shall not step on to the carriageway without taking the distance and speed of approaching vehicles into account.
(c) In order to cross the carriageway elsewhere than at a pedestrian crossing signposted as such or indicated by markings on the carriageway, pedestrians shall not step on to the carriageway without first making sure that they can do so without impeding vehicular traffic.
(d) Once they have started to cross a carriageway, pedestrians shall not take an unnecessarily long route, and shall not linger or stop on the carriageway unnecessarily.
7. However, Contracting Parties or subdivisions thereof may impose stricter requirements on pedestrians crossing the carriageway.
ARTICLE 21
Behaviour of drivers towards pedestrians
1. Every driver shall avoid behaviour likely to endanger pedestrians.
2. Without prejudice to the provisions of Article 7, paragraph 1, Article 11, paragraph 9, and Article 13, paragraph 1, of this Convention, where there is on the carriageway a pedestrian crossing signposted as such or indicated by markings on the carriageway:
(a) If vehicular traffic is regulated at that crossing by traffic light signals or by an authorized official, drivers forbidden to proceed shall stop short of the crossing or the transverse markings preceding it and, when they are permitted to proceed, shall not prevent or obstruct the passage of pedestrians who have stepped on to it; drivers turning into another road at the entrance to which there is a pedestrian crossing shall do so slowly and give way, if necessary stopping for this purpose, to pedestrians already using, or about to use, the crossing;
(b) If vehicular traffic is not regulated at that crossing by traffic light signals or by an authorized official, drivers shall approach the crossing only at a speed low enough not to endanger pedestrians using, or about to use, it; if necessary, they shall stop to allow such pedestrians to cross.
3. No provision of this Article shall be construed as preventing Contracting Parties or subdivisions thereof from:
Requiring drivers of vehicles to stop in all cases when pedestrians are using, or about to use, a pedestrian crossing signposted as such or indicated by markings on the carriageway in the conditions laid down in Article 20 of this Convention, or
Prohibiting them from preventing or obstructing the passage of pedestrians who are crossing the carriageway at or very near an intersection even if there is at that point no pedestrian crossing signposted as such or indicated by markings on the carriageway.
4. Drivers intending to overtake, on the side appropriate to the direction of traffic, a public transport vehicle at a stop marked as such shall slow down and if necessary stop to allow passengers to board or alight from that vehicle.
ARTICLE 22
Islands on the carriageway
Without prejudice to the provisions of Article 10 of this Convention, a driver may pass to the left or to the right of islands, posts and other devices set up on the carriageway on which he is travelling, except in the following cases:
(a) Where the side on which the island, post or device shall be passed is indicated by a sign;
(b) Where the island, post or device is on the centre-line of a two-way carriageway; in this case the driver shall keep to the side of the island, post or device corresponding to the direction of traffic.
ARTICLE 23
Standing and parking
1. Outside built-up areas, standing or parked vehicles and halted animals shall so far as possible be stationed elsewhere than on the carriageway. In and outside built-up areas they shall not be stationed on cycle tracks, on pavements or on verges specially provided for pedestrian traffic, save where applicable domestic legislation so permits.
2. (a) Animals halted and vehicles standing or parked on the carriageway shall be kept as close as possible to the edge of the carriageway. A driver shall not stand or park his vehicle on a carriageway save on the side appropriate, for him, to the direction of traffic; nevertheless, standing or parking on the other side shall be permitted where standing or parking on the side appropriate to the direction of traffic is prevented by the presence of rail tracks. Moreover, Contracting Parties or subdivisions thereof may:
(i) Refrain from prohibiting standing and parking on one side or the other in certain conditions, for instance where standing on the side appropriate to the direction of traffic is prohibited by road signs;
(ii) On one-way carriageways, authorize standing and parking on the other side as well as or instead of on the side appropriate to the direction of traffic;
(iii) Authorize standing and parking in the middle of the carriageway at places specially marked;
(b) Save where domestic legislation provides otherwise, vehicles other than two-wheeled cycles, two-wheeled mopeds and two-wheeled motor cycles without side-car shall not stand or be parked two abreast on the carriageway. Standing or parked vehicles shall, unless the layout of the area permits otherwise, be placed parallel to the edge of the carriageway.
3. (a) The standing or parking of a vehicle on the carriageway shall be prohibited:
(i) On pedestrian crossings, on crossings for cyclists, and on level-crossings;
(ii) On tramway or railway tracks on a road or so close to such tracks that the movement of trams or trains might be impeded, and also, subject to the possibility for Contracting Parties or subdivisions thereof to provide otherwise, on pavements and cycle tracks;
(b) The standing or parking of a vehicle at any point where it would constitute a danger shall be prohibited, more particularly:
(i) Save in such spaces as may be specially marked, under flyovers and in tunnels;
(ii) On the carriageway, close to the crests of hills, and on bends where visibility is not sufficient for the vehicle to be overtaken in complete safety, having regard to the speed of vehicles on the section of the road in question;
(iii) On a carriageway beside a longitudinal road marking, where subparagraph (b) (ii) of this paragraph does not apply but the width of the carriageway between the marking and the vehicle is less than 3 m and the marking is such that vehicles approaching it on the same side are forbidden to cross it;
(iv) At any place where the vehicle would conceal road signs or traffic light signals from the view of road-users;
(v) On an additional lane indicated by a sign for slowly moving vehicles;
(c) The parking of a vehicle on the carriageway shall be prohibited:
(i) On approaches to level-crossings, to intersections and to bus, trolley-bus or rail-vehicle stops; within the distances prescribed by domestic legislation;
(ii) In front of vehicle entries to properties;
(iii) At any point where the parked vehicle would prevent access to another vehicle properly parked or prevent such other vehicle from moving out;
(iv) On the central carriageway of three-carriageway roads and, outside built-up areas, on the carriageways of roads marked as priority roads by appropriate signs.
4. A driver shall not leave his vehicle or his animals without having taken all suitable precautions to avoid any accident and, in the case of a motor vehicle, to prevent its unauthorized use.
5. It is recommended that domestic legislation should provide as follows: every power-driven vehicle other than a two-wheeled moped or a two-wheeled motor cycle without side-car, and every trailer coupled or uncoupled shall when stationary on the carriageway outside a built-up area be signalled to approaching drivers at a sufficient distance by means of at least one appropriate device placed at the most suitable point to give them adequate advance warning:
(a) If the vehicle is stationary at night on the carriageway in circumstances such that approaching drivers cannot be aware of the obstacle which the vehicle constitutes;
(b) If the driver, in other cases, has been compelled to halt his vehicle at a place where standing is prohibited.
6. Nothing in this Article shall be construed as preventing Contracting Parties or subdivisions thereof from introducing other prohibitions on parking and standing.
ARTICLE 24
Opening of doors
It shall be prohibited to open the door of a vehicle, to leave it open, or to alight from the vehicle without having made sure that to do so cannot endanger other road-users.
ARTICLE 25
Motorways and similar roads
1. On motorways and, if so provided in domestic legislation, on special approach roads to and exit roads from motorways:
(a) The use of the road shall be prohibited to pedestrians, animals, cycles, mopeds unless they are treated as motor cycles, and all vehicles other than motor vehicles and their trailers, and to motor vehicles or motor-vehicle trailers which are incapable, by virtue of their design, of attaining on a flat road a speed specified by domestic legislation;
(b) Drivers shall be forbidden:
(i) To have their vehicles standing or parked elsewhere than at marked parking sites; if a vehicle is compelled to stop, its driver shall endeavour to move it off the carriageway and also off the flush verge and, if he is unable to do so, immediately signal the presence of the vehicle at a distance so as to warn approaching drivers in time;
(ii) To make U-turns, to travel in reverse, and to drive on to the central dividing strip, including the crossovers linking the two carriageways.
2. Drivers emerging on to a motorway shall give way to vehicles travelling on it. If there is an acceleration lane, they shall use it.
3. A driver leaving a motorway shall move into the traffic lane appropriate to the motorway exit in good time and enter the deceleration lane, if there is one, as soon as he can.
4. For the purpose of the application of paragraphs 1, 2 and 3 of this Article, other roads reserved for motor vehicle traffic, duly signposted as such and not affording access to or from properties alongside, shall be treated as motorways.
ARTICLE 25 bis
Special regulations for tunnels indicated by special road signs
In tunnels indicated by the special road signs, the following rules shall apply:
1. All drivers are forbidden:
(a) to reverse;
(b) to make a U-turn;
(c) to stop or to park a vehicle except at the places indicated for that purpose.
2. Even if the tunnel is lit, all drivers must switch on the driving or passing lamps.
3. In case of a prolonged stoppage the driver must switch off the engine.
ARTICLE 26
Special rules applicable to processions and handicapped persons
1. It shall be prohibited for road-users to cut across troop columns, files of school-children accompanied by a person in charge, and other processions.
2. Handicapped persons travelling in invalid chairs propelled by themselves or moving at a walking pace may use pavements (sidewalks) and suitable verges.
ARTICLE 27
Special rules applicable to cyclists, moped drivers and motor cyclists
1. Notwithstanding the provisions of Article 10, paragraph 3, of this Convention, Contracting Parties or subdivisions thereof shall be free not to prohibit cyclists from travelling two or more abreast.
2. It shall be prohibited for cyclists to ride without holding the handlebars with at least one hand, to allow themselves to be towed by another vehicle, or to carry, tow or push objects which hamper their cycling or endanger other road- users. The same provisions shall apply to moped drivers and motor cyclists; in addition, however, moped drivers and motor cyclists shall hold the handlebars with both hands except when signalling the manoeuvre described in Article 14, paragraph
3, of this Convention.
3. It shall be prohibited for cyclists and moped drivers to carry passengers on their vehicle; however, Contracting Parties or subdivisions thereof may authorize exceptions to this provision and, in particular, authorize the transport of passengers on such additional saddle or saddles as may be fitted on the vehicle. Motor cyclists shall not be permitted to carry passengers except in the side-car, if there is one, and on the additional saddle (pillion), if any, fitted behind the driver.
4. Where cycle tracks exist, Contracting Parties or subdivisions thereof may forbid cyclists to use the rest of the carriageway. In the same circumstances they may authorize moped drivers to use the cycle track and, if they consider it advisable, prohibit them from using the rest of the carriageway.
ARTICLE 28
Audible and luminous warnings
1. Audible warning devices may be used only:
(a) To give due warning with a view to avoiding an accident;
(b) Outside built-up areas when it is desirable to warn a driver that he is about to be overtaken.
The sounds emitted by audible warning devices shall not be prolonged more than necessary.
2. Motor-vehicle drivers may give the luminous warnings specified in Article 32, paragraph 3, of this Convention, instead of audible warnings, between nightfall and dawn. They may also do so in daylight hours for the purpose indicated in paragraph 1(b) of this Article, if to do so is more appropriate in the prevailing circumstances.
3. Contracting Parties or subdivisions thereof may authorize the use of luminous warnings in built-up areas also for the purpose referred to in paragraph 1(b) of this Article.
ARTICLE 29
Rail-borne vehicles
1. Where a railway uses a carriageway, every road-user shall, on the approach of a tram or other rail-borne vehicle clear the track as soon as possible to allow the rail-borne vehicle to pass.
2. Contracting Parties or subdivisions thereof may adopt special rules, differing from those laid down in this Chapter, for the movement of rail-borne vehicles on the road and for passing or overtaking such vehicles. However, Contracting Parties or subdivisions thereof may not adopt provisions which conflict with those of Article 18, paragraph 7, of this Convention.
ARTICLE 30
Loading of vehicles
1. If a permissible maximum mass is laid down for a vehicle, the laden mass of the vehicle shall never exceed the permissible maximum mass.
2. Every load on a vehicle shall be so arranged and, if necessary, stowed as to prevent it from:
(a) Endangering persons or causing damage to public or private property, more particularly by trailing on or falling on to the road;
(b) Obstructing the driver's view or impairing the stability or driving of the vehicle;
(c) Causing noise, raising dust, or creating any other nuisance which can be avoided;
(d) Masking lights, including stop lights and direction-indicators, reflex reflectors, registration numbers and the distinguishing sign of the State of registration with which, under this Convention or under domestic legislation, the vehicle is required to be equipped, or masking signals given by arm in accordance with Article 14, paragraph 3, or Article 17, paragraph 2, of this Convention.
3. All accessories, such as cables, chains and sheets, used to secure or protect the load shall be drawn tight around the load and be firmly fastened. All accessories used to protect the load shall satisfy the requirements laid down for the load in paragraph 2 of this Article.
4. Loads projecting beyond the front, rear or sides of the vehicle shall be clearly marked in all cases where their projection might not be noticed by the drivers of other vehicles; at night, a white light and a white reflecting device shall be used for such marking at the front and a red light and a red reflecting device at the rear. More particularly, on power-driven vehicles:
(a) Loads projecting more than 1 m beyond the front or rear of the vehicle shall always be marked;
(b) Loads projecting laterally beyond the outer edge of the vehicle in such a way that their lateral outer edge is more than 0.40 m from the outer edge of the vehicle's front position (side) light shall be marked at the front at night, and loads projecting in such a way that their lateral outer edge is more than 0.40 m from the outer edge of the vehicle's red rear position (side) light shall be similarly marked at the rear at night.
5. Nothing in paragraph 4 of this Article shall be construed as preventing Contracting Parties or subdivisions thereof from prohibiting, restricting, or subjecting to special authorization, load projections as referred to in the aforesaid paragraph 4.
ARTICLE 30 bis
Carriage of passengers
Passengers shall not be carried in such numbers or in such a way as to interfere with driving or obstruct the driver's view.
ARTICLE 31
Behaviour in case of accident
1. Without prejudice to the provisions of domestic legislation concerning the obligation to assist the injured, every driver or other road-user involved in a traffic accident shall:
(a) Stop as soon as he can do so without causing an additional danger to traffic;
(b) Endeavour to ensure traffic safety at the site of the accident and, if a person has been killed or seriously injured in the accident, to prevent, in so far as such action does not affect traffic safety, any change in conditions at the site, including the disappearance of traces which might be useful for determining responsibilities;
(c) If so requested by other persons involved in the accident, identify himself to them;
(d) If a person has been injured or killed in the accident, notify the police and remain on the scene of the accident or return to it and wait there until the arrival of the police, unless he has been authorized by the police to leave or has to assist the injured or to receive attention himself.
2. Contracting Parties or subdivisions thereof may, under their domestic legislation, refrain from imposing the provision of paragraph 1 (d) of this Article in cases where no serious injury has been caused and none of the persons involved requests that the police should be notified.
ARTICLE 32
Rules of the use of lamps
1. Between nightfall and dawn and in any other circumstances when visibility is inadequate on account, for example, of fog, snowfall or heavy rain, the following lamps shall be lit on a moving vehicle:
(a) On power-driven vehicles and mopeds the driving lamp(s) or passing lamp(s) and the rear position lamp(s), according to the equipment prescribed by the present Convention for the vehicle of each category;
(b) On trailers, front position lamps, if such lamps are required according to Annex 5, paragraph 30, of this Convention, and not less than two rear position lamps.
2. Driving lamps shall be switched off and replaced by passing lamps:
(a) In built-up areas where the road is adequately lighted and outside built-up areas where the carriageway is continuously lighted and the lighting is sufficient to enable the driver to see clearly for an adequate distance and to enable other road-users to see the vehicle far enough away;
(b) When a driver is about to pass another vehicle, so as to prevent dazzle far enough away to enable the driver of the other vehicle to proceed easily and without danger;
(c) In any other circumstances in which it is necessary to avoid dazzling other road-users or the users of a waterway or railway running alongside the road.
3. When, however, a vehicle is following closely behind another vehicle, driving lamps may be used to give a luminous warning as referred to in Article 28, paragraph 2, of the intention to overtake.
4. Fog lamps may be lit only in thick fog, falling snow, heavy rain or similar conditions and, as regards front fog maps, as a substitute for passing lamps. Domestic legislation may authorize the simultaneous use of front fog lamps and passing lamps and the use of front fog lamps on narrow, winding roads.
5. On vehicles equipped with front position lamps, such lamps shall be used together with the driving lamps, the passing lamps or the front fog lamps.
6. During the day, a motor cycle moving on the road shall display at least one passing lamp to the front and a red lamp to the rear. Domestic legislation may permit the use of daytime running lamps instead of passing lamps.
7. Domestic legislation may make it compulsory for drivers of motor vehicles to use during the day either passing lamps or daytime running lamps. Rear position lamps shall in this case be used together with the front lamps.
8. Between nightfall and dawn and in any other circumstances when visibility is inadequate, the presence of power-driven vehicles and their trailers standing or parked on a road shall be indicated by front and rear position lamps. In thick fog, falling snow, heavy rain or similar conditions passing lamps or front fog lamps may be used. Rear fog lamps may in these conditions be used as a supplement to the rear position lamps.
9. Notwithstanding the provisions of paragraph 8 of this Article, within a built-up area the front and rear position lamps may be replaced by parking lamps, provided that:
(a) The vehicle does not exceed 6 m in length and 2 m in width;
(b) No trailer is coupled to the vehicle;
(c) The parking lamps are placed on that side of the vehicle which is furthest from the carriageway edge alongside which the vehicle is standing or parked.
10. Notwithstanding the provisions of paragraphs 8 and 9 of this Article, a vehicle may be standing or parked without any lamps lit:
(a) On a road lit in such a way that the vehicle is clearly visible at an adequate distance;
(b) Away from the carriageway and hard shoulder;
(c) In the case of mopeds and two-wheeled motor cycles without a side-car which are not equipped with batteries, at the extreme edge of a carriageway in a built-up area;
11. Domestic legislation may grant exemptions from the provisions of paragraphs 8 and 9 of this Article for vehicles standing or parked in streets in built-up areas where there is very little traffic.
12. Reversing lamps may be used only when the vehicle is reversing or about to reverse.
13. Hazard warning signal may be used only to warn other road-users of a particular danger:
(a) When a vehicle which has broken down or has been involved in an accident cannot be moved immediately, so that it constitutes an obstacle to other road-users;
(b) When indicating to other road-users the risk of an imminent danger.
14. Special warning lamps:
(a) Displaying a blue light may be used only on priority vehicles when carrying out an urgent mission or when in other cases it is necessary to give warning to other road-users of the presence of the vehicle;
(b) Displaying an amber light may be used only when the vehicles genuinely assigned to the specific tasks for which they were equipped with the special warning lamp or when the presence of such vehicles on the road constitutes a danger or inconvenience to other road-users.
The use of warning lamps displaying other colours may be authorized by domestic legislation.
15. In no circumstances shall a vehicle display a red light to the front or white light to the rear, subject to the exemptions mentioned in Annex 5, paragraph
61. A vehicle shall not be modified or lamps added to it in a way which could conflict with this requirement.
ARTICLE 33
Rules of lighting of other vehicles than mentioned in
Article 32 and of certain road users
1. Every vehicle or combination of vehicles to which the provisions of Article 32 of this Convention do not apply shall, when on a road between nightfall and dawn, show at least one white or selective-yellow light to the front and at least one red light to the rear. Where there is only one lamp at the front or only one lamp at the rear, the lamp shall be placed on the centre-line of the vehicle or on the side opposite to that corresponding to the direction of traffic.
(a) Handcarts, i.e. , carts drawn or pushed by hand, shall show at least one white or selective-yellow light to the front and at least one red light to the rear. These two lights may be emitted by a single lamp placed on the side opposite to that corresponding to the direction of traffic. Lights shall not be required on handcarts not exceeding 1 m in width.
(b) Animal-drawn vehicles shall show two white or selective-yellow lights to the front, and two red lights to the rear. Domestic legislation may, however, make it permissible for such vehicles to show only one white or selective-yellow light to the front and only one red light to the rear. The lamps shall in both cases be placed on the side opposite to that corresponding to the direction of traffic. If the lamps described above cannot be attached to the vehicle, they may be carried by an escort walking immediately alongside the vehicle, on the opposite side to that corresponding to the direction of traffic. Furthermore, animal-drawn vehicles shall be fitted with two red reflex-reflectors to the rear, as close as possible to the outer edges of the vehicle. Lights shall not be required on animal-drawn vehicles not exceeding 1 m in width. However, a single reflex- reflector shall in this case be placed at the rear on the side opposite to that corresponding to the direction of traffic, or centrally.
2. (a) When moving along the carriageway by night:
(i) Groups of pedestrians led by a person in charge or forming a procession, must display, on the side opposite to that appropriate to the direction of traffic, at least one white or selective-yellow light to the front and a red light to the rear, or an amber light in both directions;
(ii) Drivers of draught, pack or saddle animals, or of cattle, must display, on the side opposite to that appropriate to the direction of traffic, at least one white or selective-yellow light to the front and a red light to the rear, or an amber light in both directions. These lights may be displayed by a single device.
(b) The lights referred to in subparagraph (a) of this paragraph are, however, not required within an appropriately lit built-up area.
ARTICLE 34
Exemptions
1. When warned of the approach of a priority vehicle by its special luminous and audible warning devices every road-user shall leave room clear for it to pass on the carriageway and shall, if necessary, stop.
2. Domestic legislation may provide that drivers of priority vehicles shall not be bound, when warning of their movement is given by the vehicle's special warning devices, and provided that they do not endanger other road-users, to comply with all or any of the provisions of this Chapter II other than those of Article 6, paragraph 2.
3. Domestic legislation may determine to what extent persons working on the construction, repair or maintenance of the road, including the drivers of equipment used for such work, shall not be bound, provided they take the necessary precautions, to observe the provisions of this Chapter II during their work.
4. For the purpose of overtaking or passing the equipment referred to in paragraph 3 of this Article while it is engaged in work on the road, the drivers of other vehicles may, to the extent necessary and on conditions that they take all due precautions, disregard the requirements of Articles 11 and 12 of this Convention.
Chapter III
CONDITIONS FOR THE ADMISSION OF MOTOR VEHICLES AND TRAILERS TO INTERNATIONAL TRAFFIC
ARTICLE 35
Registration
1. (a) In order to be entitled to the benefits of this Convention, every motor vehicle in international traffic, and every trailer, other than a light trailer, coupled to a motor vehicle shall be registered by a Contracting Party or a subdivision thereof, and the driver of the motor vehicle shall carry a valid certificate of such registration issued either by a competent authority of such Contracting Party or subdivision thereof or on behalf and by authorization of such Contracting Party or subdivision thereof by an association duly empowered thereto by that Contracting Party or subdivision thereof. This certificate, to be known as the registration certificate, shall bear the following particulars at least:
A serial number, to be known as the registration number, composed in the manner indicated in Annex 2 to this Convention;
The date of first registration of the vehicle;
The full name and home address of the holder of the certificate; The name or the trade mark of the maker of the vehicle;
The serial number of the chassis (the maker's production or serial number);
In the case of a vehicle intended for the carriage of goods, the permissible maximum mass;
In the case of a vehicle intended for the carriage of goods, the unladen mass;
The period of validity, if not unlimited.
The particulars entered in the certificate shall either be in Latin characters or so-called English cursive script only, or be repeated in that form.
(b) Contracting Parties or subdivisions thereof may, however, decide that the year of manufacture, instead of the date of first registration, shall be entered on certificates issued in their territories.
(c) In the case of motor vehicles of categories A and B as defined in Annexes 6 and 7 to this Convention and, if possible, for other motor vehicles:
(i) The certificate shall be headed with the distinguishing sign of the State of registration as defined in annex 3 to this Convention;
(ii) The letters A, B, C, D, E, F, G and H respectively shall be placed before or after the eight items of information which are required under subparagraph (a) of this paragraph, to be shown on all registration certificates;
(iii) The words Certificat d'immatriculation in French may be placed either before or after the title of the certificate in the national language (or languages) of the country of registration.
(d) For trailers, including semi-trailers, imported temporarily into a country by a mode of transport other than road transport, a photocopy of the registration certificate, certified as a true copy by the authority which issued the certificate, shall be considered sufficient.
2. Notwithstanding the provisions of paragraph 1 of this Article, an articulated vehicle which is not disassembled while in international traffic shall be entitled to the benefits of the provisions of this Convention even if it has only a single registration and a single certificate for the drawing vehicle and semi-trailer composing it.
3. Nothing in this Convention shall be construed as limiting the right of Contracting Parties or subdivisions thereof to require, in the case of a vehicle in international traffic which is not registered in the name of a person travelling in it, proof of the driver's right to be in possession of the vehicle.
4. It is recommended that Contracting Parties should set up, if they have not already done so, a service responsible for keeping, at the national or regional level, a record of motor vehicles brought into use and a centralized record, for each vehicle, of the particulars entered in each certificate of registration.
ARTICLE 36
Registration number
1. Every motor vehicle in international traffic shall display its registration number at the front and at the rear; motor cycles, however, shall only be required to display this number at the rear.
2. Every registered trailer in international traffic shall display its registration number at the rear. Where a motor vehicle draws one or more trailers, the sole trailer or the last trailer, if not registered, shall display the registration number of the drawing vehicle.
3. The composition of the registration number referred to in this Article, and the manner of displaying it, shall conform to the provisions of Annex 2 to this Convention.
ARTICLE 37
Distinguishing sign of the State of registration
1. Every motor vehicle in international traffic shall display at the rear, in addition to its registration number, a distinguishing sign of the State in which it is registered.
2. Every trailer coupled to a motor vehicle and required under Article 36 of this Convention to display a registration number at the rear shall also display at the rear the distinguishing sign of the State where the registration number was assigned. The provisions of this paragraph shall be applicable even if the trailer is registered in a State other than the State of registration of the motor vehicle to which it is coupled; if the trailer is not registered, it shall display at the rear the distinguishing sign of the State of registration of the drawing vehicle except when it is travelling in that State.
3. The composition of the distinguishing sign referred to in this Article, and the manner of displaying it, shall conform to the requirements of Annex 3 to this Convention.
ARTICLE 38
Identification marks
Every motor vehicle and every trailer in international traffic shall bear the identification marks specified in Annex 4 to this Convention.
ARTICLE 39
Technical requirements and inspection of vehicles
1. Every motor vehicle, every trailer and every combination of vehicles in international traffic shall satisfy the provisions of Annex 5 to this Convention.
It shall also be in good working order.
2. Domestic legislation shall require periodic technical inspections of:
(a) Motor vehicles used for the carriage of persons and having more than eight seats in addition to the driver's seat;
(b) Motor vehicles used for the carriage of goods whose permissible maximum mass exceeds 3, 500 kg and trailers designed to be coupled to such vehicles.
3. Domestic legislation shall, as far as possible, extend the provision of paragraph 2 to the other categories of vehicles.
ARTICLE 40
Transitional provision
1. For a period of 10 years from the entry into force of this Convention in accordance with Article 47, paragraph 1, trailers in international traffic, whatever their permissible maximum mass, shall be entitled to the benefits of the provisions of this Convention even if they are not registered.
2. The registration certificate shall conform with the provisions of the amendment to Article 35, paragraph 1 within five years from the date of its entry into force. Certificates issued during that period shall be mutually recognized until the expiry date inscribed therein.
Chapter IV
DRIVERS OF MOTOR VEHICLES
ARTICLE 41
Driving permits
1. (a) Every driver of a motor vehicle must hold a driving permit;
(b) Contracting Parties undertake to ensure that driving permits are issued only after verification by the competent authorities that the driver possesses the required knowledge and skill;
(c) Domestic legislation must lay down requirements for obtaining a driving permit;
(d) Nothing in this Convention shall be construed as preventing Contracting Parties or subdivisions thereof from requiring driving permits for other power-driven vehicles and mopeds.
2. Contracting Parties shall recognize:
(a) Any domestic permit drawn up in their national language or in one of their national languages, or, if not drawn up in such a language, accompanied by a certified translation;
(b) Any domestic permit conforming to the provisions of Annex 6 to this Convention; and
(c) Any international permit conforming to the provisions of Annex 7 to this Convention;
as valid for driving in their territories a vehicle coming within the categories covered by the permit, provided that the permit is still valid and that it was issued by another Contracting Party or subdivision thereof or by an association duly empowered thereto by such other Contracting Party. The provisions of this paragraph shall not apply to learner-driver permits.
3. Notwithstanding the provisions of the preceding paragraph:
(a) Where the validity of the driving permit is made subject by special endorsement to the condition that the holder shall wear certain devices or that the vehicle shall be equipped in a certain way to take account of the driver's disability, the permit shall not be recognized as valid unless those conditions are observed;
(b) Contracting Parties may refuse to recognize the validity in their territories of driving permits held by persons under eighteen years of age;
(c) Contracting Parties may refuse to recognize the validity in their territories, for the driving of motor vehicles or combinations of vehicles in categories C, D and E referred to in Annexes 6 and 7 to this Convention, of driving permits held by persons under twenty-one years of age.
4. Contracting Parties may introduce in their domestic legislation a subdivision of the categories of vehicles referred to in Annexes 6 and 7 of this Convention. If the driving permit is restricted to certain vehicles within a category, a numeral shall be added to the letter of the category and the nature of the restriction shall be indicated in the driving permit.
5. For the purpose of the application of paragraph 2 and subparagraph 3 (c) of this Article:
(a) A motor vehicle of the category B referred to in Annexes 6 and 7 to this Convention may be coupled to a light trailer; it may also be coupled to a trailer whose permissible maximum mass exceeds 750 kg but does not exceed the unladen mass of the motor vehicle if the combined permissible maximum mass of the vehicles so coupled does not exceed 3, 500 kg;
(b) A motor vehicle of the category C, or of the category D referred to in Annexes 6 and 7 to this Convention may be coupled to a light trailer without the resultant combination ceasing to belong to category C or category D.
6. An international permit shall be issued only to the holder of a domestic permit for the issue of which the minimum conditions laid down in this Convention have been fulfilled. It shall not be valid after the expiry of the corresponding domestic permit, the number of which shall be entered in the international permit.
7. The provisions of this Article shall not require Contracting Parties:
(a) To recognize the validity of domestic or international permits issued in the territory of another Contracting Party to persons who had their normal residence in their territories at the time of such issue or whose normal residence has been transferred to their territories since such issue; or
(b) To recognize the validity of permits as aforesaid issued to drivers whose normal residence at the time of such issue was not in the territory in which the permit was issued or who since such issue have transferred their residence to another territory.
ARTICLE 42
Suspension of the validity of driving permits
1. Contracting Parties or subdivisions thereof may withdraw from a driver the right to use his domestic or international driving permit in their territories if he commits in their territories a breach of their regulations rendering him liable under their legislations to the forfeiture of his permit. In such a case the competent authority of the Contracting Party or subdivision thereof withdrawing the right to use the permit may:
(a) Withdraw and retain the permit until the period of the withdrawal of use expires or until the holder leaves its territory, whichever is the earlier;
(b) Notify the withdrawal of the right to use the permit to the authority by or on behalf of which the permit was issued;
(c) In the case of an international permit, enter in the space provided for the purpose an endorsement to the effect that the permit is no longer valid in its territories;
(d) Where it has not applied the procedure for which provision is made in subparagraph (a) of this paragraph, supplement the communication referred to in subparagraph (b) by requesting the authority which issued the permit, or on behalf of which the permit was issued, to notify the person concerned of the decision taken with regard to him.
2. Contracting Parties shall endeavour to notify the persons concerned of the decisions communicated to them in accordance with the procedure laid down in paragraph 1 (d) of this Article.
3. Nothing in this Convention shall be construed as prohibiting Contracting Parties or subdivisions thereof from preventing a driver holding a domestic or international driving permit from driving if it is evident or proved that his condition is such that he is unable to drive safely or if the right to drive has been withdrawn from him in the State in which he has his normal residence.
ARTICLE 43
Transitional provisions
1. International driving permits conforming to the provisions of the Convention on Road Traffic done at Geneva on 19 September 1949 and issued within in a period of five years from the date of the entry into force of this Convention in accordance with Article 47, paragraph 1 thereof shall be accorded, for the purposes of Articles 41 and 42 of this Convention, the same treatment as the international driving permits provided for in this Convention.
2. Domestic driving permits shall conform with the provisions of the amendment to Annex 6 within five years from the date of its entry into force. Permits issued during that period shall be mutually recognized until the expiry date inscribed therein.
Chapter V
CONDITIONS FOR THE ADMISSION OF CYCLES AND MOPEDS TO INTERNATIONAL TRAFFIC
ARTICLE 44
1. Cycles without an engine in international traffic shall:
(a) Have an efficient brake;
(b) Be equipped with a bell capable of being heard at a sufficient distance, and carry no other audible warning device;
(c) Be equipped with a red reflecting device at the rear and with devices such that the cycle can show a white or selective-yellow light to the front and a red light to the rear.
2. In the territory of Contracting Parties which have not, in accordance with Article 54, paragraph 2, of this Convention, made a statement to the effect that they treat mopeds as motor cycles, mopeds in international traffic shall:
(a) Have two independent brakes;
(b) Be equipped with a bell or some other audible warning device capable of being heard at a sufficient distance;
(c) Be equipped with an effective exhaust silencer;
(d) Be so equipped that they can show a white or selective-yellow light to the front and a red light and a red reflex-reflector to the rear;
(e) Display the identification mark specified in Annex 4 to this Convention.
3. In the territories of Contracting Parties which have, in accordance with Article 54, paragraph 2, of this Convention, declared that they treat mopeds as motor cycles, the conditions to be fulfilled by mopeds in order to be admitted to international traffic shall be those laid down for motor cycles in Annex 5 to this Convention.
Chapter VI
FINAL PROVISIONS
ARTICLE 45
1. This Convention shall be open at United Nations Headquarters, New York, until 31 December 1969 for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention.
2. This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.
3. This Convention shall remain open for accession by any of the States referred to in paragraph 1 of this Article. The instruments of accession shall be deposited with the Secretary-General.
4. On signing this Convention or on depositing its instrument of ratification or accession, each State shall notify the Secretary-General of the distinguishing sign it has selected for display in international traffic on vehicles registered by it, in accordance with Annex 3 to this Convention. By a further notification addressed to the Secretary-General, any State may change a distinguishing sign it has previously selected.
ARTICLE 46
1. Any State may, at the time of signing or ratifying this Convention, or of acceding thereto, or at any time thereafter, declare by notification addressed to the Secretary-General that the Convention shall become applicable to all or any of the territories for the international relations of which it is responsible. The Convention shall become applicable to the territory or territories named in the notification thirty days after the receipt of the notification by the Secretary-General or on the date of entry into force of the Convention for the State making the notification, whichever is the later.
2. Any State which has made a declaration under paragraph 1 of this Article may at any time thereafter declare by notification addressed to the Secretary-General that the Convention shall cease to be applicable to the territory named in the notification and the Convention shall cease to be applicable to such territory one year from the date of receipt by the Secretary-General of the notification.
3. A State making a notification under paragraph 1 of this Article shall notify the Secretary-General of the distinguishing sign or signs it has selected for display in international traffic on vehicles registered in the territory or territories concerned, in accordance with Annex 3 to this Convention. By a further notification addressed to the Secretary-General, any State may change a distinguishing sign it has previously selected.
ARTICLE 47
1. This Convention shall enter into force twelve months after the date of deposit of the fifteenth instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the fifteenth instrument of ratification or accession, the Convention shall enter into force twelve months after the date of deposit by such State of its instrument of ratification or accession.
ARTICLE 48
Upon its entry into force, this Convention shall terminate and replace, in relations between the Contracting Parties, the International Convention relative to Motor Traffic and the International Convention relative to Road Traffic, both signed at Paris on 24 April 1926, the Convention on the Regulation of Inter- American Automotive Traffic, opened for signature at Washington on 15 December 1943, and the Convention on Road Traffic, opened for signature at Geneva on 19 September 1949.
ARTICLE 49
1. After this Convention has been in force for one year, any Contracting Party may propose one or more amendments to the Convention. The text of any proposed amendment, accompanied by an explanatory memorandum, shall be transmitted to the Secretary-General, who shall communicate it to all Contracting Parties. The Contracting Parties shall have the opportunity of informing him within a period of twelve months following the date of its circulation whether they (a) accept the amendment; or (b) reject the amendment; or (c) wish that a conference be convened to consider the amendment. The Secretary-General shall also transmit the text of the proposed amendment to all other States referred to in Article 45, paragraph 1 of this Convention.
2. (a) Any proposed amendment communicated in accordance with the preceding paragraph shall be deemed to be accepted if within the period of twelve months referred to in the preceding paragraph less than one-third of the Contracting Parties inform the Secretary-General that they either reject the amendment or wish that a conference be convened to consider it. The Secretary-General shall notify all Contracting Parties of each acceptance or rejection of any proposed amendment and of requests that a conference be convened. If the total number of such rejections and requests received during the specified period of twelve months is less than one-third of the total number of Contracting Parties, the Secretary- General shall notify all Contracting Parties that the amendment will enter into force six months after the expiry of the period of twelve months referred to in the preceding paragraph for all Contracting Parties except those which, during the period specified, have rejected the amendment or requested the convening of a conference to consider it.
(b) Any Contracting Party which, during the said period of twelve months, has rejected a proposed amendment or requested the convening of a conference to consider it may at any time after the end of such period notify the Secretary- General that it accepts the amendment, and the Secretary-General shall communicate such notification to all the other Contracting Parties. The amendment shall enter into force, with respect to the Contracting Parties which have notified their acceptance, six months after receipt by the Secretary-General of their notification.
3. If a proposed amendment has not been accepted in accordance with paragraph 2 of this Article and if within the period of twelve months specified in paragraph 1 of this Article less than half of the total number of the Contracting Parties inform the Secretary-General that they reject the proposed amendment and if at least one-third of the total number of Contracting Parties, but not less than ten, inform him that they accept it or wish a conference to be convened to consider it, the Secretary-General shall convene a conference for the purpose of considering the proposed amendment or any other proposal which may be submitted to him in accordance with paragraph 4 of this Article.
4. If a conference is convened in accordance with paragraph 3 of this Article, the Secretary-General shall invite to it all States referred to in Article 45, paragraph 1 of this Convention. He shall request all States invited to the conference to submit to him, at least six months before its opening date, any proposals which they may wish the conference to consider in addition to the proposed amendment and shall communicate such proposals, at least three months before the opening date of the conference, to all States invited to the conference.
5. (a) Any amendment to this Convention shall be deemed to be accepted if it has been adopted by a two-thirds majority of the States represented at the conference, provided that such majority comprises at least two-thirds of Contracting Parties represented at the conference. The Secretary-General shall notify all Contracting Parties of the adoption of the amendment, and the amendment shall enter into force twelve months after the date of his notification for all Contracting Parties except those which during that period have notified the Secretary-General that they reject the amendment.
(b) A Contracting Party which has rejected an amendment during the said period of twelve months may at any time notify the Secretary-General that it accepts the amendment, and the Secretary-General shall communicate such notification to all the other Contracting Parties. The amendment shall enter into force, with respect to the Contracting Party which has notified its acceptance, six months after receipt by the Secretary-General of the notification or at the end of the said period of twelve months, whichever is later.
6. If the proposed amendment is not deemed to be accepted pursuant to paragraph 2 of this Article and if the conditions prescribed by paragraph 3 of this Article for convening a conference are not fulfilled, the proposed amendment shall be deemed to be rejected.
ARTICLE 50
Any Contracting Party may denounce this Convention by written notification addressed to the Secretary-General. The denunciation shall take effect one year after the date of receipt by the Secretary-General of such notification.
ARTICLE 51
This Convention shall cease to be in force if the number of Contracting Parties is less than five for any period of twelve consecutive months.
ARTICLE 52
Any dispute between two or more Contracting Parties which relates to the interpretation or application of this Convention and which the Parties are unable to settle by negotiation or other means of settlement may be referred, at the request of any of the Contracting Parties concerned, to the International Court of Justice for decision.
ARTICLE 53
Nothing in this Convention shall be construed as preventing a Contracting Party from taking such action, compatible with the provisions of the Charter of the United Nations and limited to the exigencies of the situation, as it considers necessary to its external or internal security.
ARTICLE 54
1. Any State may, at the time of signing this Convention or of depositing its instrument of ratification or accession, declare that it does not consider itself bound by Article 52 of this Convention. Other Contracting Parties shall not be bound by Article 52 with respect to any Contracting Party which has made such a declaration.
2. At the time of depositing its instrument of ratification or accession, any State may, by notification addressed to the Secretary-General, declare that for the purposes of the application of the Convention it treats mopeds as motor cycles (Article 1 (n)).
By notification addressed to the Secretary-General, any State may subsequently at any time withdraw its declaration.
3. The declarations provided for in paragraph 2 of this Article shall become effective six months after the date of receipt by the Secretary-General of notification of them or on the date on which the Convention enters into force for the State making the declaration, whichever is the later.
4. Any modification of a previously selected distinguishing sign notified in conformity with Article 45, paragraph 4, or Article 46, paragraph 3 of this Convention, shall take effect three months after the date on which the Secretary- General receives notification thereof.
5. Reservations to this Convention and its annexes, other than the reservation provided for in paragraph 1 of this Article, shall be permitted on condition that they are formulated in writing and, if formulated before the deposit of the instrument of ratification or accession, are confirmed in that instrument. The Secretary-General shall communicate such reservations to all States referred to in Article 45, paragraph 1, of this Convention.
6. Any Contracting Party which has formulated a reservation or made a declaration under paragraphs 1 or 4 of this Article may withdraw it at any time by notification addressed to the Secretary-General.
7. A reservation made in accordance with paragraph 5 of this Article:
(a) Modifies for the Contracting Party which made the reservation the provisions of the Convention to which the reservation relates, to the extent of the reservation;
(b) Modifies those provisions to the same extent for the other Contracting Parties in their relations with the Contracting Party which entered the reservation.
ARTICLE 55
In addition to the declarations, notifications and communications provided for in Articles 49 and 54 of this Convention, the Secretary-General shall notify all the States referred to in Article 45, paragraph 1, of the following:
(a) Signatures, ratifications and accessions under Article 45;
(b) Notifications and declarations under Article 45, paragraph 4, and Article 46;
(c) The dates of entry into force of this Convention in accordance with Article 47;
(d) The date of entry into force of amendments to this Convention in accordance with Article 49, paragraphs 2 and 5;
(e) Denunciations under Article 50;
(f) The determination of this Convention under Article 51.
ARTICLE 56
The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts done in a single copy are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified true copies thereof to all the States referred to in Article 45, paragraph 1, of this Convention.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, * / being duly authorized by their respective Governments, have signed this Convention.
DONE at Vienna this eighth day of November, one thousand nine hundred and sixty-eight.
____________________
* / See document E/CONF.56/16/Rev.1
ANNEXES
Annex 1
EXCEPTIONS TO THE OBLIGATION TO ADMIT MOTOR VEHICLES AND TRAILERS IN INTERNATIONAL TRAFFIC
1. Contracting Parties may refuse to admit to their territories in international traffic motor vehicles, trailers or combinations of vehicles whose overall mass or mass per axle or dimensions exceed the limits fixed by their domestic legislations for vehicles registered in their territories. Contracting Parties in whose territories there is international heavy vehicle traffic shall endeavour to conclude regional agreements under which roads in the region, with the exception of minor roads, will be open, in international traffic, to vehicles or combinations of vehicles whose mass and dimensions do not exceed the figures specified in these agreements.
2. For the purposes of paragraph 1 of this Annex, the lateral projection of the following shall not be regarded as projection beyond the permissible maximum width:
(a) Tyres, near their point of contact with the ground and connections of tyre-pressure indicators;
(b) Anti-skid devices mounted on the wheels;
(c) Driving mirrors so designed as to yield both forwards and backwards under moderate pressure so that they no longer project beyond the permissible maximum width;
(d) Side direction-indicators and marker lights, provided that such projection does not exceed a few centimetres;
(e) Customs seals affixed to the load, and devices for the securing and protection of such seals.
3. Contracting Parties may refuse to admit to their territories in international traffic the following combinations of vehicles in so far as the use of such combinations is prohibited by their domestic legislations:
(a) Motor cycles with trailers;
(b) Combinations of vehicles consisting of a motor vehicle and several trailers;
(c) Articulated vehicles used for passenger transport.
4. Contracting Parties may refuse to admit to their territories in international traffic the motor vehicles and trailers to which the exceptions specified in paragraph 60 of Annex 5 to this Convention are applicable.
5. Contracting Parties may refuse to admit to their territories in international traffic mopeds and motor cycles whose drivers and passengers, if any, are not equipped with protective helmets.
6. Contracting Parties may make it a condition for the admission to their territories in international traffic of any motor vehicle other than a two-wheeled moped or a two-wheeled motor cycle without side-car, that the motor vehicle shall carry a device referred to in paragraph 56 of Annex 5 to this Convention, to give warning of the danger constituted by the vehicle's presence when it is stationary on the carriageway.
7. Contracting Parties may make it a condition for the admission to certain difficult roads or to certain areas of difficult terrain in their territories in international traffic of motor vehicles with a permissible maximum mass exceeding 3, 500 kg, that such vehicles shall comply with the special requirements laid down in their domestic legislations concerning the admission to such roads or areas of vehicles of the same permissible maximum mass registered by them.
8. Contracting Parties may refuse to admit to their territories in international traffic any motor vehicle equipped with passing lamps with asymmetric beams if such beams have not been adapted to suit the direction of traffic in their territories.
9. Contracting Parties may refuse to admit to their territories in international traffic any motor vehicle, or any trailer coupled to a motor vehicle, which displays a distinguishing sign other than that prescribed in Article 37 of this Convention.
Annex 2
REGISTRATION NUMBER OF MOTOR VEHICLES AND TRAILERS IN INTERNATIONAL TRAFFIC
1. The registration number referred to in Articles 35 and 36 of this Convention shall be composed either of numerals or of numerals and letters. The numerals shall be Arabic numerals and the letters shall be in capital Latin characters. Other numerals or characters may, however, be used, but if so the registration number shall be repeated in Arabic numerals and in capital Latin characters.
2. The registration number shall be so composed and displayed as to be legible in normal daylight at a distance of at least 40 m by an observer placed on the axis of the vehicle, the vehicle being stationary; Contracting Parties may, however, in respect of the vehicles they register, reduce this minimum legibility distance for motor cycles and for special categories of motor vehicle on which it would be difficult to fit registration numbers of sufficient size to be legible at 40 m.
3. When the registration number is displayed on a special plate, this plate shall be flat and fixed in a vertical or nearly vertical position and at right angles to the vehicle's median longitudinal plane. When the number is displayed or painted on the vehicle, the surface on which it is displayed or painted shall be flat and vertical, or nearly flat and vertical, and at right angles to the vehicle's median longitudinal plane.
4. Subject to the provisions of Article 32, paragraph 5, the plate or surface on which the registration number is displayed or painted may be of a reflecting material.
Annex 3
DISTINGUISHING SIGN OF MOTOR VEHICLES AND TRAILERS IN INTERNATIONAL TRAFFIC
1. The distinguishing sign referred to in Article 37 of this Convention shall consist of one to three letters in capital Latin characters. The letters shall have a height of at least 0.08 m and their strokes a width of at least 0.01 m. The letters shall be painted in black on a white ground having the shape of an ellipse with the major axis horizontal.
2. When the distinguishing sign consists of only one letter, the major axis of the ellipse may be vertical.
3. The distinguishing sign shall not be incorporated in the registration number, or be affixed in such a way that it could be confused with that number or impair its legibility.
4. On motor cycles and their trailers, the dimensions of the axes of the ellipse shall be at least 0.175 m and 0.115 m. On other motor vehicles and their trailers, the dimensions of the axes of the ellipse shall be at least:
(a) 0.24 m and 0.145 m if the distinguishing sign comprises three letters;
(b) 0.175 m and 0.115m if the distinguishing sign comprises less than three letters.
5. The provisions of Annex 2, paragraph 3, shall apply to the display of the distinguishing sign on vehicles.
Annex 4
IDENTIFICATION MARKS OF MOTOR VEHICLES AND TRAILERS IN INTERNATIONAL TRAFFIC
1. The identification marks shall comprise:
(a) In the case of a motor vehicle:
(i) The name or the trade mark of the maker of the vehicle;
(ii) On the chassis or, in the absence of a chassis, on the body, the maker's production or serial number;
(iii) On the engine, the engine number if such a number is placed on it by the maker;
(b) In the case of a trailer, the information referred to in subparagraphs (i) and (ii) above;
(c) In the case of a moped, the cylinder capacity and the mark "CM".
2. The marks mentioned in paragraph 1 of this Annex shall be placed in accessible positions and shall be easily legible; in addition, they shall be such that they cannot be easily altered or removed. The letters and figures included in the marks shall be either in Latin characters or in English cursive script and in Arabic numerals only, or be repeated in that form.
Annex 5
TECHNICAL CONDITIONS CONCERNING MOTOR VEHICLES AND TRAILERS
1. Without prejudice to the provisions of Article 3, paragraph 2 (a) and Article 39, paragraph 1 of this Convention any Contracting Party may, with respect to motor vehicles which it registers and to trailers which it allows on the road under its domestic legislation, lay down rules which supplement, or are stricter than, the provisions of this annex. All vehicles in international traffic must meet the technical requirements in force in their country of registration when they first entered into service.
2. For the purposes of this Annex, the term "trailer" applies only to a trailer designed to be coupled to a motor vehicle.
3. Contracting Parties which, in conformity with Article 1, subparagraph (n), of this Convention, have declared that they wish to treat as motor cycles three- wheeled vehicles the unladen mass of which does not exceed 400 kg, shall make such vehicles subject to the rules laid down in this Annex either for motor cycles or for other motor vehicles.
CHAPTER I
Braking
4. For the purposes of this chapter:
(a) The term "wheels of one axle" means wheels which are arranged symmetrically, or largely symmetrically, in relation to the vehicle's median longitudinal plane, even if they are not placed on the same axle (a tandem axle is counted as two axles);
(b) The term "service brake" means the device normally used to slow down and stop the vehicle;
(c) The term "parking brake" means the device used to hold the vehicle stationary in the driver's absence, or, in the case of trailers, when the trailer is uncoupled;
(d) The term "secondary (emergency) brake" means the device designed to slow down and stop the vehicle in the event of failure of the service brake.
A. Braking of motor vehicles other than motor cycles
5. Every motor vehicle other than a motor cycle shall have brakes which can be easily operated by the driver when in his driving position. These brakes shall be capable of performing the following three braking functions:
(a) A service brake capable of slowing down the vehicle and of stopping it safely, rapidly and effectively, whatever its conditions of loading and whatever the upward or downward gradient of the road on which it is moving;
(b) A parking brake capable of holding the vehicle stationary, whatever its conditions of loading, on a noticeable upward or downward gradient, the operative surfaces of the brake being held in the braking position by a device whose action is purely mechanical;
(c) A secondary (emergency) brake capable of slowing down and stopping the vehicle, whatever its conditions of loading, within a reasonable distance, even in the event of failure of the service brake.
6. Subject to the provisions of paragraph 5 of this Annex, the devices providing the three braking functions (service brake, secondary brake and parking brake) may have parts in common; combination of the controls shall be permitted only on condition that at least two separate controls remain.
7. The service brake shall act on all the wheels of the vehicle.
8. The secondary (emergency) brake shall be capable of acting on at least one wheel on each side of the vehicle's median longitudinal plane; the same provision shall apply to the parking brake.
9. The service brake and the parking brake shall act on braking surfaces permanently connected to the wheels through components of adequate strength.
10. No braking surface shall be capable of being disconnected from the wheels. Nevertheless, such disconnection shall be permitted in the case of some of the braking surfaces, on condition:
(a) That it is only momentary, as for example, during a change of gear;
(b) That so far as concerns the parking brake, it can be effected only by the action of the driver; and
(c) That so far as concerns the service or secondary (emergency) brake, braking remains possible with the efficiency prescribed in the paragraph 5 of this Annex.
10 bis. All vehicle equipment contributing to braking shall be so designed and constructed that the efficacy of the service brake is ensured after prolonged and repeated use.
10 ter. The service braking action shall be properly distributed and synchronized among the various axles of the vehicle.
10 quater. If the control of the service brake is assisted, partially or totally, by an energy source other than the muscular energy of the driver, it shall be possible to stop the vehicle within a reasonable distance even in the event of the failure of the energy source.
B. Braking of trailers
11. Without prejudice to the provisions of paragraph 17 (c) of this Annex, every trailer, with the exception of a light trailer, shall have brakes as follows:
(a) A service brake capable of slowing down the vehicle and of stopping it safely, rapidly and effectively, whatever its conditions of loading and whatever the upward or downward gradient of the road on which it is moving;
(b) A parking brake capable of holding the vehicle stationary, whatever its conditions of loading, on a noticeable upward or downward gradient, the operative surfaces of the brake being held in the braking position by a device whose action is purely mechanical. This provision shall not apply to trailers which cannot be uncoupled from the drawing vehicle without the use of tools, provided that the requirements for parking brakes are satisfied for the combination of vehicles.
12. The devices providing the two braking functions (service and parking) may have parts in common.
13. The service brake shall act on all the wheels of the trailer. The braking action shall be properly distributed and synchronized among the various axles of the trailer.
14. The service brake shall be capable of being brought into action by the service brake control of the drawing vehicle; if, however, the permissible maximum mass of the trailer does not exceed 3, 500 kg, the brakes may be such as to be brought into action, while the trailer is in motion, only by the trailer moving up on the drawing vehicle (overrun braking).
15. The service brake and the parking brake shall act on braking surfaces permanently connected to the wheels through components of adequate strength.
16. The braking devices shall be such that the trailer is stopped automatically if the coupling device breaks while the trailer is in motion. This requirement shall not apply, however, to trailers with only one axle or with two axles less than 1 m apart, provided that their permissible maximum mass does not exceed 1, 500 kg and, except for semi-trailers, that they are fitted, in addition to the coupling device, with a secondary attachment.
C. Braking of combinations of vehicles
17. In addition to the provisions of parts A and B of this Chapter relating to separate vehicles (motor vehicles and trailers), the following provisions shall apply to combinations of such vehicles:
(a) The braking devices on each of the component vehicles shall be compatible;
(b) The service braking action shall be properly distributed and synchronized between the various axles of the combination;
(c) The permissible maximum mass of a trailer without a service brake shall not exceed half of the sum of the unladen mass of the drawing vehicle and the mass of the driver.
D. Braking of motor cycles
18. (a) Every motor cycle shall be equipped with two brakes, one of which acts at least on the rear wheel or wheels and the other at least on the front wheel or wheels; if a side-car is attached to a motor cycle, braking of the side-car wheel shall not be required. These braking devices shall be capable of slowing down the motor cycle and of stopping it safely, rapidly and effectively, whatever its conditions of loading and whatever the upward or downward gradient of the road on which it is moving.
(b) In addition to the provisions of subparagraph (a) of this paragraph, motor cycles having three wheels symmetrically arranged in relation to the vehicle's median longitudinal plane shall be equipped with a parking brake that fulfils the conditions stated in paragraph 5 (b) of this Annex.
CHAPTER II
Vehicle lighting and light-signalling devices
19. For the purposes of this chapter, the term:
“Driving lamp" means the lamp used to illuminate the road over a long distance ahead of the vehicle;
"Passing lamp" means the lamp used to illuminate the road ahead of the vehicle without causing undue dazzle or inconvenience to oncoming drivers and other road-users;
"Front position lamp" means the lamp used to indicate the presence and the width of the vehicle when viewed from the front;
"Rear position lamp" means the lamp used to indicate the presence and the width of the vehicle when viewed from the rear;
"Stop lamp" means the lamp used to indicate to other road-users to the rear of the vehicle that the driver is applying the service brake;
"Front fog lamp" means the lamp used to improve the illumination of the road in case of thick fog, falling snow, heavy rain or similar conditions;
"Rear fog lamp" means the lamp used to make the vehicle more visible from the rear in case of thick fog, falling snow, heavy rain or similar conditions;
"Reversing lamp" means the lamp used to illuminate the road to the rear of the vehicle and provide a warning signal to other road-users that the vehicle is reversing or about to reverse;
"Direction-indicator lamp" means the lamp used to indicate to other road- users that the driver intends to change direction to the right or to the left;
"Parking lamp" means the lamp used to indicate the presence of a parked vehicle; it may replace the front and rear position lamps;
"Marker lamp" means the lamp positioned near the outer edge of the overall width and as near as possible to the top of the vehicle for the purpose of clearly indicating the overall width. This signal complements the position lamps for some motor vehicles and trailers by drawing particular attention to their size;
"Hazard warning signal" means the signal given by the simultaneous functioning of all the direction-indicator lamps;
"Side lamp" means the lamp installed on the side of the vehicle so as to indicate its presence when viewed from the side;
"Special warning lamp" means the lamp intended to indicate either priority vehicles or a vehicle or a group of vehicles whose presence on the road requires other road-users to take special precautions, in particular, convoys of vehicles, vehicles of exceptional size and road construction or maintenance vehicles or equipment;
"Rear registration plate illuminating device" means the device ensuring the illumination of the rear registration plate; it may be made up of several optical elements;
"Daytime (running) lamp" means a lamp intended to improve the daytime conspicuity and visibility of the front of a vehicle in running use;
"Reflex-reflector" means a device used to indicate the presence of a vehicle by reflection of light emanating from a light source unconnected with that vehicle;
"Illuminating surface" means the orthogonal projection, in a transverse vertical plane, of the effective surface from which the light is emitted. For a reflex-reflector, the effective surface is the visible surface of the reflex- reflecting optical unit.
20. The colours of lights mentioned in this chapter should, as far as possible, be in accordance with the definitions given in the appendix to this Annex.
21. With the exception of motor cycles, every motor vehicle capable of exceeding 40 km (25 miles) per hour on level road shall be equipped in front with an even number of white or selective-yellow driving lamps capable of adequately illuminating the road at night in clear weather. The outer edges of the illuminating surfaces of the driving lamps shall in no case be closer to the extreme outer edge of the vehicle than the outer edges of the illuminating surfaces of the passing lamps.
22. With the exception of motor cycles, every motor vehicle capable of exceeding 10 km (6 miles) per hour on level road shall be equipped in front with an even number of white or selective-yellow passing lamps capable of adequately illuminating the road at night in clear weather. A motor vehicle shall be equipped with a device such that no more than two passing lamps may be lit simultaneously. Passing lamps shall be so adjusted as to comply with the definition in paragraph 19 of this Annex.
23. Every motor vehicle other than a two-wheeled motor cycle without side-car shall be equipped in front with two white front position lamps; however, selective yellow shall be permitted for front position lamps incorporated in driving lamps or passing lamps which emit a selective-yellow beam. These front position lamps, when they are the only lamps switched on at the front of the vehicle, shall be visible at night in clear weather without causing undue dazzle or inconvenience to other road-users;
24. (a) Every motor vehicle other than a two-wheeled motor cycle without side- car shall be equipped at the rear with an even number of red rear position lamps visible at night in clear weather without causing undue dazzle or inconvenience to other road-users;
(b) Every trailer shall be equipped at the rear with an even number of red rear position lamps visible at night in clear weather without causing undue dazzle or inconvenience to other road-users. It shall, however, be permissible for a trailer whose overall width does not exceed 0.80 m to be equipped with only one such lamp if the trailer is coupled to a two-wheeled motor cycle without side-car.
25. Every motor vehicle or trailer displaying a registration number at the rear shall be equipped with a lighting device such that the number is legible at night in clear weather.
26. The electrical connections on all motor vehicles (including motor cycles) and on all combinations consisting of a motor vehicle and one or more trailers shall be such that the driving lamps, passing lamps, front fog lamps and front position lamps of the motor vehicle and the lighting device referred to in paragraph 25 above cannot be switched on unless the rearmost rear position lamps of the motor vehicle or combination of vehicles are switched on as well.
Rear fog lamps shall be able to be switched on only if the driving lamps, the passing lamps or the front fog lamps are switched on.
However, this provision shall not apply to driving lamps or passing lamps when they are used to give the luminous warning referred to in Article 32, paragraph 3, of this Convention. In addition, the electrical connections shall be such that the front position lamps of the motor vehicle are always switched on when the passing lamps, driving lamps or fog lamps are on.
27. Every motor vehicle other than two-wheeled motor cycle without side-car shall be equipped at the rear with at least two red reflex-reflectors of otherthan triangular form. When illuminated by the driving, passing or fog lamps of another vehicle, the reflex-reflectors shall be visible to the driver of that vehicle at night in clear weather.
28. Every trailer shall be equipped at the rear with at least two red reflex- reflectors. These reflex-reflectors shall have the shape of an equilateral triangle with one vertex uppermost and one side horizontal. No signal lamp shall be placed inside the triangle. These reflex-reflectors shall meet the requirements for visibility laid down in paragraph 27 above. However, trailers with an overall width not exceeding 0.80 m may be equipped with only one reflex- reflector if they are coupled to a two-wheeled motor cycle without side-car.
29. Every trailer shall be equipped at the front with two white reflex- reflectors of other than triangular form. These reflex-reflectors shall meet the visibility requirements laid down in paragraph 27 above.
30. A trailer shall be equipped at the front with two white front position lamps if its width exceeds 1.60 m. The front position lamps thus prescribed shall be fitted as near as possible to the extreme outer edge of the trailer.
31. With the exception of two-wheeled motor cycles with or without side-car, every motor vehicle capable of exceeding 25 km (15 miles) per hour on a level road shall be equipped at the rear with at least two red stop lamps, the luminous intensity of which is markedly higher than that of the rear position lamps. The same provision shall apply to every trailer which is the last vehicle in a combination of vehicles.
32. Subject to the possibility that exemption from all or some of these obligations may be granted in respect of mopeds by Contracting Parties which, in conformity with Article 54, paragraph 2, of the Convention, have declared that they treat mopeds as motor cycles:
(a) Every two-wheeled motor cycle with or without side-car shall be equipped with one or two passing lamps satisfying the conditions regarding colour and visibility laid down in paragraph 22 above;
(b) Every two-wheeled motor cycle with or without side-car capable of exceeding 40 km (25 miles) per hour on a level road shall be equipped, in addition to the passing lamp, with at least one driving lamp satisfying the conditions regarding colour and visibility laid down in paragraph 21 above. If such a motor cycle has more than one driving lamp, these lamps shall be situated as close together as possible.
33. Every two-wheeled motor cycle without side-car may be equipped at the front with one or two front position (side) lamps satisfying the conditions regarding colour and visibility laid down in paragraph 23 above. If such a motor cycle has two front position (side) lamps, these lamps shall be situated as close together as possible.
34. Every two-wheeled motor cycle without side-car shall be equipped at the rear with one rear position side lamp satisfying the conditions regarding colour and visibility laid down in paragraph 24 (a) above.
35. Every two-wheeled motor cycle without side-car shall be equipped at the rear with a non-triangular reflex-reflector satisfying the conditions regarding colour and visibility laid down in paragraph 27 above.
36. Subject to the possibility for Contracting Parties which, in conformity with Article 54, paragraph 2, have declared that they treat mopeds as motor cycles, to exempt two-wheeled mopeds with or without side-cars from this obligation, every two-wheeled motor cycle with or without side-car shall be equipped with a stop lamp conforming to the provisions of paragraph 31 above.
37. Without prejudice to the provisions concerning lamps and devices prescribed for two-wheeled motor cycles without side-car, any side-car attached to a two- wheeled motor cycle shall be equipped at the front with a front position (side) lamp satisfying the conditions regarding colour and visibility laid down in paragraph 23 above, and at the rear with a rear position (side) lamp satisfying the conditions regarding colour and visibility laid down in paragraph 24 (a) above and with a reflex-reflector satisfying the conditions regarding colour and visibility laid down in paragraph 27 above. The electrical connections shall be such that the front position (side) lamp and rear position (side) lamp of the side-car are switched on at the same time as the rear position (side) lamp of the motor cycle.
38. Motor vehicles with three wheels placed symmetrically in relation to the vehicle's median longitudinal plane, which are treated as motor cycles pursuant to Article 1, subparagraph (n), of the Convention, shall be equipped with the devices prescribed in paragraphs 21, 22, 23, 24 (a), 27 and 31 above. However, on an electric vehicle the width of which does not exceed 1.30 m and the speed of which does not exceed 40 km (25 miles) per hour a single driving lamp and a single passing lamp are sufficient.
39. Every motor vehicle, except a moped, and every trailer shall be equipped with fixed direction-indicators with flashing amber lights, fitted on the vehicle in even numbers and visible by day and by night to road-users affected by the vehicle's movements.
40. If front fog lamps are fitted on a motor vehicle they shall emit white or selective-yellow light, be two or, in the case of motor cycle, one in number and be placed in such a way that no point on their illuminating surface is above the highest point on the illuminating surface of the passing lamps.
41. No reversing lamp shall cause undue dazzle or inconvenience to other road- users. If reversing lamps are fitted on a motor vehicle they shall emit white or selective-yellow light. These lamps shall be lit only when the reverse gear is engaged.
42. No lamps, other than direction-indicator lamps and special warning lamps, shall emit a winking or flashing light. Side lamps may wink at the same time as direction-indicator lamps.
42 bis. Special warning lamps shall emit a winking or flashing light. Colours of these lights should conform to the provisions of Article 32, paragraph 14.
42 ter. Every motor vehicle except motor cycles and every trailer shall be so equipped that they can emit a hazard warning signal.
42 quater. If rear fog lamps are fitted on a motor vehicle or a trailer they shall be red.
42 quinquies. Every motor vehicle and every trailer more than 6 m long shall be fitted with amber side reflex-reflectors.
42 sexties. Every motor vehicle and trailer more than 1.80 m wide may be fitted with marker lamps. Such lamps shall be mandatory if the width of a motor vehicle or trailer exceeds 2.10 m. If these lamps are used, there shall be at least two of them and they shall emit white or amber light towards the front and red light towards the rear.
42 septies. Every motor vehicle and trailer may be fitted with side lamps. If such lamps are fitted they shall emit amber light.
43. For the purposes of the provisions of this Annex:
(a) Any combination of two or more lamps, whether identical or not, but having the same function and the same colour of light, shall be deemed to be a single lamp;
(b) A single illuminating surface in the shape of a band shall be deemed to be two or an even number of lamps if it is placed symmetrically to the median longitudinal plane of the vehicle. The illumination of such a surface shall be provided by at least two light sources placed as close as possible to its ends.
44. Lamps on a given vehicle having the same function and facing in the same direction, shall be of the same colour. Lamps and reflex-reflectors which are of even number shall be placed symmetrically in relation to the vehicle's median longitudinal plane, except on vehicles with an asymmetrical external shape. The intensity of the lamps in each pair shall be substantially the same.
45. Lamps of different kinds, and, subject to the provisions of other paragraphs of this Chapter, lamps and reflex-reflectors, may be grouped or incorporated in the same device, provided that each of these lamps and reflectors complies with the applicable provisions of this Annex.
CHAPTER III
Other requirements
Steering mechanism
46. Every motor vehicle shall be equipped with a strong steering mechanism which will allow the driver to change the direction of the vehicle, easily, quickly and surely.
Driving (rear-view) mirror
47. Every motor vehicle shall be equipped with one or more driving (rear-view) mirrors; the number, dimensions and arrangement of these mirrors shall be such as to enable the driver to see the traffic to the rear of his vehicle.
Audible warning device
48. Every motor vehicle shall be equipped with at least one audible warning device of sufficient power. The sound emitted by the warning device shall be continuous and uniform, but not strident. Priority vehicles and public passenger-transport vehicles may have additional audible warning devices which are not subject to these requirements.
Windscreen-wiper
49. Every motor vehicle having a windscreen of such dimensions and shape that the driver cannot normally see the road ahead from his driving position except through the transparent part of the windscreen, shall be equipped with at least one efficient and strongly built windscreen-wiper in an appropriate position, the functioning of which does not require constant action by the driver.
Windscreen-washer
50. Every motor vehicle required to be equipped with at least one windscreen- wiper shall also be equipped with a windscreen washer.
Windscreen and windows
51. On all motor vehicles and on all trailers:
(a) Transparent substances forming part of the vehicle's body-work, including the windscreen and any interior partition, shall be such that in case of breakage, the risk of physical injury will be minimized;
(b) The transparent parts of the windscreen shall be made of a substance whose transparency does not deteriorate; they shall be such that they do not cause any appreciable distortion of objects seen through the windscreen, and that, in case of breakage, the driver still has a sufficiently clear view of the road.
Reversing device
52. Every motor vehicle shall be equipped with a reversing device controlled from the driving position. This device shall not, however, be compulsory on motor cycles or on motor vehicles having three wheels arranged symmetrically in relation to the vehicle's median longitudinal plane unless their permissible maximum mass exceeds 400 kg.
Exhaust silencer
53. Every internal combustion engine used for propelling a motor vehicle shall be equipped with an efficient exhaust silencer.
Tyres
54. The wheels of motor vehicles and of their trailers shall be fitted with pneumatic tyres ensuring a good adhesion, even on a wet road. This provision shall not, however, prevent Contracting Parties from authorizing the use of devices producing results at least equivalent to those obtained with pneumatic tyres.
Speedometer
55. Every motor vehicle capable of exceeding 40 km (25 miles) per hour on a level road shall be equipped with a speedometer; Contracting Parties may, however, exempt certain categories of motor cycles and other light vehicles from this requirement.
Warning device to be carried on motor vehicles
56. The device referred to in Article 23, paragraph 5, of this Convention, and in paragraph 6 of Annex 1 thereto shall be either:
(a) A signplate consisting of an equilateral triangle with a red border and with its interior part either hollow or of a light colour; the red border shall be fitted with a reflectorized strip. It may also have a red fluorescent area and/or be illuminated by transparency; the signplate shall be such that it can be stood firmly in a vertical position; or
(b) Some other equally effective device, prescribed by the legislation of the country in which the vehicle is registered.
Anti-theft device
57. Every motor vehicle shall be fitted with an anti-theft device by means of which one of its essential components can be put out of action or blocked when the vehicle is parked.
Restraining devices
58. Wherever technically practicable all forward-facing seats of vehicles of category B as referred to in Annexes 6 and 7 of this Convention, with the exception of vehicles constructed or used for special purposes as defined by domestic legislation, shall be equipped with approved safety belts or similarly effective approved devices.
General provisions
59. (a) The mechanical parts and equipment of a motor vehicle shall not, so far as this can possibly be avoided, give rise to any danger of fire or explosion; nor shall they cause excessive emission of noxious gases, opaque fumes, smells or noise.
(b) So far as possible, the high tension ignition device of a motor vehicle shall not cause excessive radio interference.
(c) Every motor vehicle shall be so constructed that the driver's field of vision ahead, and to both right and left, is sufficient to enable him to drive safely.
(d) Motor vehicles and trailers shall, as far as possible, be so constructed and equipped as to reduce the danger to their occupants and to other road-users in case of accident. In particular, they shall have no ornaments or other objects, inside or outside, with unnecessary projections or ridges which may be dangerous to the occupants or other road-users.
(e) Vehicles of which the maximum permitted mass exceeds 3.5 t shall be equipped, as far as possible, with side and rear-underrun devices.
CHAPTER IV
Exemptions
60. For domestic purposes, Contracting Parties may grant exemptions from the provisions of this Annex in respect of:
(a) Motor vehicles and trailers which, by virtue of their design, cannot exceed a speed of 30 km (19 miles) per hour on a level road of whose speed is limited by domestic legislation to 30 km per hour;
(b) Invalid carriages, i.e. small motor vehicles specially designed and constructed - and not merely adapted - for use by a person suffering from some physical defect or disability and normally used by that person only;
(c) Vehicles used for experiments whose purpose is to keep up with technical progress and improve road safety;
(d) Vehicles of a special form or type, or which are used for particular purposes under special conditions;
(e) Vehicles adapted for use by handicapped persons.
61. Contracting Parties may also grant exemptions from the provisions of this Annex in respect of vehicles which they register and which may enter international traffic:
(a) By authorizing the use of the colour amber for the front position lamps of motor vehicles and trailers;
(b) As regards the position of lamps on special-purpose vehicles whose external shape is such that the said provisions could not be observed without the use of mounting devices which could easily be damaged or torn off;
(c) As regards trailers, carrying long loads (tree trunks, pipes, etc. ), which are not coupled to the drawing vehicle when in movement, but merely attached to it by the load;
(d) By authorizing the emission towards the rear of white light and towards the front of red light for the following equipment:
Revolving of flashing lamps of priority vehicles; Fixed lamps for exceptional loads;
Side lamps and reflex-reflectors; Professional lighted signs on the roof;
(e) By authorizing the emission of blue light towards the front and towards the rear for revolving or flashing lamps;
(f) By authorizing on any side of a vehicle of a special shape or kind or used for special purposes and in special conditions, alternating red retro- reflective or fluorescent and white retro-reflective strips;
(g) By authorizing the emission towards the rear of white or coloured light reflected by figures or letters or by the background of rear registration plates, by distinctive signs or by other distinctive marks required by domestic legislation;
(h) By authorizing the use of the colour red for rearmost lateral reflex- reflectors and side lamps.
CHAPTER V
Transitional provisions
62. Motor vehicles first registered and trailers put into service in the territories of a Contracting Party before the entry into force of this Convention or within the two years following such entry into force shall not be subject to the provisions of this Annex, provided that they satisfy the requirements of parts I, II and III of Annex 6 of the 1949 Convention on Road Traffic.
62 bis. Motor vehicles first registered and trailers put into service in the territory of a Contracting Party before the entry into force of the amendments to this Convention or within the two years following such entry into force should not be subject to the provisions of this Annex, provided that they satisfy the provisions of Annex 5 of the 1968 Convention on Road Traffic in the wording prior to these amendments or other provisions referred to in Chapter V of the said Annex.
APPENDIX
DEFINITION OF COLOUR FILTERS FOR OBTAINING THE COLOURS REFERRED TO IN THIS ANNEX (TRICHROMATIC COORDINATES)
Red. . . . . . . . . . . . . . . . . . . . . limit towards yellow. . . y ? 0.335
limit towards purple 1 /. z ? 0.008
White. . . . . . . . . . . . . . . . . . . limit towards blue. . . . . x ? 0.310
limit towards yellow. . . x ? 0.500
limit towards green. . . . y ? 0.150 + 0.640x
limit towards green. . . . y ? 0.440
limit towards purple. . . y ? 0.050 + 0.750x
limit towards red. . . . . . y ? 0.382
Amber 2 /. . . . . . . . . . . . . . . . . . limit towards yellow 1 /. y ? 0.429
limit towards red 1 /. . . . y ? 0.398
limit towards white 1 /. . z ? 0.007
Selective yellow 3 /. . . . . . . limit towards red 1 /. . . . y ? 0.138 + 0.580x
limit towards green 1 /. . y ? 1.29x - 0.100
limit towards white 1 /. . y ? -x + 0.966
limit towards spectral
value 1 /. . y ? -x + 0.992
Blue. . . . . . . . . . . . . . . . . . . . limit towards green. . . . y = 0.065 + 0.805x
limit towards white. . . . y = 0.400 -x
limit towards purple. . . . x = 0.133 + 0.600y
For verifying the colorimetric characteristics of these filters, a source of white light at a colour temperature of 2854? K (corresponding to illuminant A of the International Commission on Illumination [CIE]) shall be used.
____________________
1 / In these cases, different limits have been adopted from those recommended by the CIE, since the supply voltages at the terminals of the lamps with which the lights are fitted vary very considerably.
2 / Applies to the colour of motor vehicle signs hitherto commonly called "orange" or orange-yellow. Corresponds to a specific part of the "yellow" zone of the triangle of CIE colours.
3 / Applies only to passing and driving lights. In the particular case of fog-lights, the selectivity of the colour shall be considered satisfactory if the purity factor is not less than 0.820, the limit towards white y = -x + 0.966, being in that case y = -x + 0.940 and y = 0.440.
Annex 6
DOMESTIC DRIVING PERMIT
1. The domestic driving permit shall take the form of a document.
2. The permit shall be printed in the language or languages prescribed by the authority issuing it or empowered to issue it; it shall, however, bear the title "permis de conduire" in French, with or without the same title in other languages, and the name and/or distinctive sign of the country in which the permit is issued.
3. Entries made on the permit shall either be in Latin characters or English cursive script only, or be repeated in that form.
4. The following particulars appear on the driving permit; they shall be preceded or followed by the numbers 1 to 11.
1. Surname
2. First names 1 /
3. Date and place of birth 2 /
4. Address 3 /
5. Authority issuing the permit
6. Date and place of issue of the permit
7. Date of expiry of the validity of the permit 4 /
8. Number of the permit
9. Signature and/or stamp or seal of the authority issuing the permit
10. Holder's signature 5 /
11. Category or categories of vehicle and any sub-categories for which the permit is valid with indication of the date of issue of the permit and the dates of expiry of the validity for each of those categories.
In addition, the holder's photograph shall be affixed to the driving permit. It shall be a matter for domestic legislation to determine any additional particulars to be included in the driving permit as well as the format and the material on which the driving permit is printed.
5. The categories of vehicles for which the driving permit may be valid are the following:
A. Motor cycles;
B. Motor vehicles, other than those in category A, having a permissible maximum mass not exceeding 3, 500 kg and not more than eight seats in addition to the driver's seat;
C. Motor vehicles, other than those in category D, whose permissible maximum mass exceeds 3, 500 kg;
D. Motor vehicles used for the carriage of passengers and having more than eight seats in addition to the driver's seat;
E. Combination of vehicles of which the driving vehicle is in a category or categories for which the driver is licensed (B, and/or C and/or D), but which are not themselves in that category or those categories.
6. Domestic legislations may introduce additional categories of vehicles not belonging to the above-mentioned categories A to E, sub-categories within categories and combination of categories, which shall be clearly identified in the driving permit.
Notes :
1 / Father's or husband's name may be inserted here.
2 / If date of birth is unknown, state approximate age on date of issue of permit. If place of birth is unknown, leave blank. Place of birth may be replaced by other particulars determined by domestic legislation.
3 / The address is optional.
4 / This is optional if the validity of the permit is unlimited.
5 / Or thumbprint.
Annex 7
INTERNATIONAL DRIVING PERMIT
1. The permit shall be a booklet in format A 6 (148 x 105 mm). The cover shall be grey and the inside pages white.
2. The outside and inside of the front cover shall conform, respectively, to model pages Nos. 1 and 2 below; they shall be printed in the national language, or in at least one of the national languages, of the issuing State. The last two inside pages shall be facing pages conforming to model No. 3 below; they shall be printed in French. The inside pages preceding these two pages shall repeat the first of them in several languages, which must include English, Russian and Spanish.
3. Handwritten or typed entries made on the permit shall be in Latin characters or in English cursive script.
4. Contracting Parties issuing or authorizing the issuance of international driving permits of which the cover is printed in a language other than English, French, Russian or Spanish shall communicate to the Secretary-General of the United Nations the translation into that language of the text of model page No. 3 below.
MODEL PAGE No. 1
(Outside of front cover)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 /
International Motor Traffic
INTERNATIONAL DRIVING PERMIT
No. . . . . . . . . . .
Convention on Road Traffic of 8 November, 1968
Valid until. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 /
Issued by. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
At. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Number of domestic driving permit
3 /
1 / Name of the issuing State and its distinguishing sign as defined in Annex 3.
2 / No more than three years after the date of issue or the date of expiry of the domestic driving permit, whichever is earlier.
3 / Signature of the authority or association issuing the permit.
4 / Seal or stamp of the authority or association issuing the permit.
MODEL PAGE No. 2
(Inside of front cover)
This permit is not valid for the territory of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 /
It is valid for the territories of all the other Contracting Parties. The categories of vehicles for the driving of which it is valid are stated at the end of the booklet.
2 /
This permit shall in no way affect the obligation of the holder to conform to the laws and regulations relating to residence and to the exercise of a profession in each State through which he travels. In particular, it shall cease to be valid in a State if its holder establishes his normal residence there.
1/ Enter here the name of the Contacting Party in which the holder is normally resident.
2 / Space reserved for a list of the States which are Contracting Parties (optional).
MODEL 3
Left hand page
PARTICULARS CONCERNING THE DRIVER
Surname
Other names 1 /
Place of birth 2 /
Date of birth 3 /
Home address
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
………………………………………………………………………………
1.
2.
3.
4.
5.
CATEGORIES OF VEHICLES FOR WHICH THE PERMIT IS VALID
Motor cycles
A
Motor vehicles, other than those in category A, having a permissible maximum mass not exceeding 3, 500 kg and not more than eight seats in addition to the driver's seat.
B
Motor vehicles used for the carriage of goods and whose permissible maximum mass exceeds 3, 500 kg.
C
Motor vehicles used for the carriage of passengers and having more than eight seats in addition to the driver's seat.
D
Combinations of vehicles of which the drawing vehicle is in a category or categories for which the driver is licensed (B and/or C and/or D), but which are not themselves in that category or categories.
E
RESTRICTIVE CONDITIONS OF USE 5 /
1 / Father's or husband's name may be inserted here.
2 / If the place of birth is unknown, leave blank.
3 / If date of birth is unknown, state approximate age on date of issue of permit.
4 / Seal or stamp of the authority or association issuing the permit. This seal or stamp shall be affixed against categories, A, B, C, D and E only if the holder is licensed to drive vehicles in the category in question.
5 / For example, "Must wear corrective lenses", "Valid only for driving vehicle No. . . . ", "Vehicle must be equipped to be driven by a one-legged person".
MODEL 3
Right-hand page
6/ Or thumbprint.
7/ Name of State.
8/ Signature and seal or stamp of the authority which has invalidated the permit in its territory. If the spaces provided for disqualifications on this page have already been used, any further disqualifications should be entered overleaf.
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Khongso
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Điều ước quốc tế
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08/11/1968
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20/08/2015
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Đang cập nhật
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Đang cập nhật
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Còn hiệu lực
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ROME CONVENTION, 1961
INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS
DONE AT ROME ON OCTOBER 26, 1961
TABLE OF CONTENTS
Article 1: Safeguard of Copyright Proper
Article 2: Protection given by the Convention. Definition of National Treatment
Article 3: Definitions: (a) Performers; (b) Phonogram; (c) Producers of Phonograms; (d) Publication; (e) Reproduction; (f) Broadcasting; (g) Rebroadcasting
Article 4: Performances Protected. Points of Attachment for Performers
Article 5: Protected Phonograms: 1. Points of Attachment for Producers of Phonograms; 2. Simultaneous Publication; 3. Power to exclude certain Criteria
Article 6: Protected Broadcasts: 1. Points of Attachment for Broadcasting Organizations; 2. Power to Reserve
Article 7: Minimum Protection for Performers: 1. Particular Rights; 2. Relations between Performers and Broadcasting Organizations
Article 8: Performers acting jointly
Article 9: Variety and Circus Artists
Article 10: Right of Reproduction for Phonogram Producers
Article 11: Formalities for Phonograms
Article 12: Secondary Uses of Phonograms
Article 13: Minimum Rights for Broadcasting Organizations
Article 14: Minimum Duration of Protection
Article 15: Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright
Article 16: Reservations
Article 17: Certain countries applying only the "fixation" criterion
Article 18: Withdrawal of reservations
Article 19: Performers' Rights in Films
Article 20: Non–retroactivity
Article 21: Protection by other means
Article 22: Special agreements
Article 23: Signature and deposit
Article 24: Becoming Party to the Convention
Article 25: Entry into force
Article 26: Implementation of the Convention by the Provision of Domestic Law
Article 27: Applicability of the Convention to Certain Territories
Article 28: Denunciation of the Convention
Article 29: Revision of the Convention
Article 30: Settlement of disputes
Article 31: Limits on Reservations
Article 32: Intergovernmental Committee
Article 33: Languages
Article 34: Notifications
The Contracting States, moved by the desire to protect the rights of performers, producers of phonograms, and broadcasting organisations,
Have agreed as follows:
Article 1
[Safeguard of Copyright Proper]
Protection granted under this Convention shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Convention may be interpreted as prejudicing such protection.
Article 2
[Protection given by the Convention. Definition of National Treatment]
1. For the purposes of this Convention, national treatment shall mean the treatment accorded by the domestic law of the Contracting State in which protection is claimed:
(a) to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory;
(b) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory;
(c) to broadcasting organisations which have their headquarters on its territory, as regards broadcasts transmitted from transmitters situated on its territory.
2. National treatment shall be subject to the protection specifically guaranteed, and the limitations specifically provided for, in this Convention.
Article 3
[Definitions: (a) Performers; (b) Phonogram; (c) Producers of Phonograms; (d) Publication; (e) Reproduction; (f) Broadcasting; (g) Rebroadcasting]
For the purposes of this Convention:
(a) "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;
(b) "phonogram" means any exclusively aural fixation of sounds of a performance or of other sounds;
(c) "producer of phonograms" means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds;
(d) "publication" means the offering of copies of a phonogram to the public in reasonable quantity;
(e) "reproduction" means the making of a copy or copies of a fixation;
(f) "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;
(g) "rebroadcasting" means the simultaneous broadcasting by one broadcasting organisation of the broadcast of another broadcasting organisation.
Article 4
[Performances Protected. Points of Attachment for Performers]
Each Contracting State shall grant national treatment to performers if any of the following conditions is met:
(a) the performance takes place in another Contracting State;
(b) the performance is incorporated in a phonogram which is protected under Article 5 of this Convention;
(c) the performance, not being fixed on a phonogram, is carried by a broadcast which is protected by Article 6 of this Convention.
Article 5
[Protected Phonograms: 1. Points of Attachment for Producers of Phonograms; 2. Simultaneous Publication; 3. Power to exclude certain Criteria]
1. Each Contracting State shall grant national treatment to producers of phonograms if any of the following conditions is met:
(a) the producer of the phonogram is a national of another Contracting State (criterion of nationality);
(b) the first fixation of the sound was made in another Contracting State (criterion of fixation);
(c) the phonogram was first published in another Contracting State (criterion of publication).
2. If a phonogram was first published in a non–contracting State but if it was also published, within thirty days of its first publication, in a Contracting State (simultaneous publication), it shall be considered as first published in the Contracting State.
3. By means of a notification deposited with the Secretary–General of the United Nations, any Contracting State may declare that it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.
Article 6
[Protected Broadcasts: 1. Points of Attachment for Broadcasting Organizations; 2. Power to Reserve]
1. Each Contracting State shall grant national treatment to broadcasting organisations if either of the following conditions is met:
(a) the headquarters of the broadcasting organisation is situated in another Contracting State;
(b) the broadcast was transmitted from a transmitter situated in another Contracting State.
2. By means of a notification deposited with the Secretary–General of the United Nations, any Contracting State may declare that it will protect broadcasts only if the headquarters of the broadcasting organisation is situated in another Contracting State and the broadcast was transmitted from a transmitter situated in the same Contracting State. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.
Article 7
[Minimum Protection for Performers: 1. Particular Rights; 2. Relations between Performers and Broadcasting Organizations]
1. The protection provided for performers by this Convention shall include the possibility of preventing:
(a) the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation;
(b) the fixation, without their consent, of their unfixed performance;
(c) the reproduction, without their consent, of a fixation of their performance:
(i) if the original fixation itself was made without their consent;
(ii) if the reproduction is made for purposes different from those for which the performers gave their consent;
(iii) if the original fixation was made in accordance with the provisions of Article 15, and the reproduction is made for purposes different from those referred to in those provisions.
2.
(1) If broadcasting was consented to by the performers, it shall be a matter for the domestic law of the Contracting State where protection is claimed to regulate the protection against rebroadcasting, fixation for broadcasting purposes and the reproduction of such fixation for broadcasting purposes.
(2) The terms and conditions governing the use by broadcasting organisations of fixations made for broadcasting purposes shall be determined in accordance with the domestic law of the Contracting State where protection is claimed.
(3) However, the domestic law referred to in sub–paragraphs (1) and (2) of this paragraph shall not operate to deprive performers of the ability to control, by contract, their relations with broadcasting organisations.
Article 8
[Performers acting jointly]
Any Contracting State may, by its domestic laws and regulations, specify the manner in which performers will be represented in connection with the exercise of their rights if several of them participate in the same performance.
Article 9
[Variety and Circus Artists]
Any Contracting State may, by its domestic laws and regulations, extend the protection provided for in this Convention to artists who do not perform literary or artistic works.
Article 10
[Right of Reproduction for Phonogram Producers]
Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 11
[Formalities for Phonograms]
If, as a condition of protecting the rights of producers of phonograms, or of performers, or both, in relation to phonograms, a Contracting State, under its domestic law, requires compliance with formalities, these shall be considered as fulfilled if all the copies in commerce of the published phonogram or their containers bear a notice consisting of the symbol (P), accompanied by the year date of the first publication, placed in such a manner as to give reasonable notice of claim of protection; and if the copies or their containers do not identify the producer or the licensee of the producer (by carrying his name, trade mark or other appropriate designation), the notice shall also include the name of the owner of the rights of the producer; and, furthermore, if the copies or their containers do not identify the principal performers, the notice shall also include the name of the person who, in the country in which the fixation was effected, owns the rights of such performers.
Article 12
[Secondary Uses of Phonograms]
If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.
Article 13
[Minimum Rights for Broadcasting Organizations]
Broadcasting organisations shall enjoy the right to authorize or prohibit:
(a) the rebroadcasting of their broadcasts;
(b) the fixation of their broadcasts;
(c) the reproduction:
(i) of fixations, made without their consent, of their broadcasts;
(ii) of fixations, made in accordance with the provisions of Article 15, of their broadcasts, if the reproduction is made for purposes different from those referred to in those provisions;
(d) the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee; it shall be a matter for the domestic law of the State where protection of this right is claimed to determine the conditions under which it may be exercised.
Article 14
[Minimum Duration of Protection]
The term of protection to be granted under this Convention shall last at least until the end of a period of twenty years computed from the end of the year in which:
(a) the fixation was made–for phonograms and for performances incorporated therein;
(b) the performance took place–for performances not incorporated in phonograms;
(c) the broadcast took place–for broadcasts.
Article 15
[Permitted Exceptions: 1. Specific Limitations; 2. Equivalents with copyright]
1. Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards:
(a) private use;
(b) use of short excerpts in connection with the reporting of current events;
(c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms and broadcasting organisations, as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with this Convention.
Article 16
[Reservations]
1. Any State, upon becoming party to this Convention, shall be bound by all the obligations and shall enjoy all the benefits thereof. However, a State may at any time, in a notification deposited with the Secretary–General of the United Nations, declare that:
(a) as regards Article 12:
(i) it will not apply the provisions of that Article;
(ii) it will not apply the provisions of that Article in respect of certain uses;
(iii) as regards phonograms the producer of which is not a national of another Contracting State, it will not apply that Article;
(iv) as regards phonograms the producer of which is a national of another Contracting State, it will limit the protection provided for by that Article to the extent to which, and to the term for which, the latter State grants protection to phonograms first fixed by a national of the State making the declaration; however, the fact that the Contracting State of which the producer is a national does not grant the protection to the same beneficiary or beneficiaries as the State making the declaration shall not be considered as a difference in the extent of the protection;
(b) as regards Article 13, it will not apply item (d) of that Article; if a Contracting State makes such a declaration, the other Contracting States shall not be obliged to grant the right referred to in Article 13, item (d), to broadcasting organisations whose headquarters are in that State.
2. If the notification referred to in paragraph 1 of this Article is made after the date of the deposit of the instrument of ratification, acceptance or accession, the declaration will become effective six months after it has been deposited.
Article 17
[Certain countries applying only the "fixation" criterion]
Any State which, on October 26, 1961, grants protection to producers of phonograms solely on the basis of the criterion of fixation may, by a notification deposited with the Secretary–General of the United Nations at the time of ratification, acceptance or accession, declare that it will apply, for the purposes of Article 5, the criterion of fixation alone and, for the purposes of paragraph 1(a)(iii) and (iv) of Article 16, the criterion of fixation instead of the criterion of nationality.
Article 18
[Withdrawal of reservations]
Any State which has deposited a notification under paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 or Article 17, may, by a further notification deposited with the Secretary–General of the United Nations, reduce its scope or withdraw it.
Article 19
[Performers' Rights in Films]
Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audio–visual fixation, Article 7 shall have no further application.
Article 20
[Non- retroactivity]
1. This Convention shall not prejudice rights acquired in any Contracting State before the date of coming into force of this Convention for that State.
2. No Contracting State shall be bound to apply the provisions of this Convention to performances or broadcasts which took place, or to phonograms which were fixed, before the date of coming into force of this Convention for that State.
Article 21
[Protection by other means]
The protection provided for in this Convention shall not prejudice any protection otherwise secured to performers, producers of phonograms and broadcasting organisations.
Article 22
[Special agreements]
Contracting States reserve the right to enter into special agreements among themselves in so far as such agreements grant to performers, producers of phonograms or broadcasting organisations more extensive rights than those granted by this Convention or contain other provisions not contrary to this Convention.
Article 23
[Signature and deposit]
This Convention shall be deposited with the Secretary–General of the United Nations. It shall be open until June 30, 1962, for signature by any State invited to the Diplomatic Conference on the International Protection of Performers, Producers of Phonograms and Broadcasting Organisations which is a party to the Universal Copyright Convention or a member of the International Union for the Protection of Literary and Artistic Works.
Article 24
[Becoming Party to the Convention]
1. This Convention shall be subject to ratification or acceptance by the signatory States.
2. This Convention shall be open for accession by any State invited to the Conference referred to in Article 23, and by any State Member of the United Nations, provided that in either case such State is a party to the Universal Copyright Convention or a member of the International Union for the Protection of Literary and Artistic Works.
3. Ratification, acceptance or accession shall be effected by the deposit of an instrument to that effect with the Secretary–General of the United Nations.
Article 25
[Entry into force]
1. This Convention shall come into force three months after the date of deposit of the sixth instrument of ratification, acceptance or accession.
2. Subsequently, this Convention shall come into force in respect of each State three months after the date of deposit of its instrument of ratification, acceptance or accession.
Article 26
[Implementation of the Convention by the Provision of Domestic Law]
1. Each Contracting State undertakes to adopt, in accordance with its Constitution, the measures necessary to ensure the application of this Convention.
2. At the time of deposit of its instrument of ratification, acceptance or accession, each State must be in a position under its domestic law to give effect to the terms of this Convention.
Article 27
[Applicability of the Convention to Certain Territories]
1. Any State may, at the time of ratification, acceptance or accession, or at any time thereafter, declare by notification addressed to the Secretary–General of the United Nations that this Convention shall extend to all or any of the territories for whose international relations it is responsible, provided that the Universal Copyright Convention or the International Convention for the Protection of Literary and Artistic Works applies to the territory or territories concerned. This notification shall take effect three months after the date of its receipt.
2. The notifications referred to in paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 and Articles 17 and 18, may be extended to cover all or any of the territories referred to in paragraph 1 of this Article.
Article 28
[Denunciation of the Convention]
1. Any Contracting State may denounce this Convention, on its own behalf or on behalf of all or any of the territories referred to in Article 27.
2. The denunciation shall be effected by a notification addressed to the Secretary–General of the United Nations and shall take effect twelve months after the date of receipt of the notification.
3. The right of denunciation shall not be exercised by a Contracting State before the expiry of a period of five years from the date on which the Convention came into force with respect to that State.
4. A Contracting State shall cease to be a party to this Convention from that time when it is neither a party to the Universal Copyright Convention nor a member of the International Union for the Protection of Literary and Artistic Works.
5. This Convention shall cease to apply to any territory referred to in Article 27 from that time when neither the Universal Copyright Convention nor the International Convention for the Protection of Literary and Artistic Works applies to that territory.
Article 29
[Revision of the Convention]
1. After this Convention has been in force for five years, any Contracting State may, by notification addressed to the Secretary–General of the United Nations, request that a conference be convened for the purpose of revising the Convention. The Secretary–General shall notify all Contracting States of this request. If, within a period of six months following the date of notification by the Secretary–General of the United Nations, not less than one half of the Contracting States notify him of their concurrence with the request, the Secretary–General shall inform the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works, who shall convene a revision conference in co–operation with the Intergovernmental Committee provided for in Article 32.
2. The adoption of any revision of this Convention shall require an affirmative vote by two–thirds of the States attending the revision conference, provided that this majority includes two–thirds of the States which, at the time of the revision conference, are parties to the Convention.
3. In the event of adoption of a Convention revising this Convention in whole or in part, and unless the revising Convention provides otherwise:
(a) this Convention shall cease to be open to ratification, acceptance or accession as from the date of entry into force of the revising Convention;
(b) this Convention shall remain in force as regards relations between or with Contracting States which have not become parties to the revising Convention.
Article 30
[Settlement of disputes]
Any dispute which may arise between two or more Contracting States concerning the interpretation or application of this Convention and which is not settled by negotiation shall, at the request of any one of the parties to the dispute, be referred to the International Court of Justice for decision, unless they agree to another mode of settlement.
Article 31
[Limits on Reservations]
Without prejudice to the provisions of paragraph 3 of Article 5, paragraph 2 of Article 6, paragraph 1 of Article 16 and Article 17, no reservation may be made to this Convention.
Article 32
[Intergovernmental Committee]
1. An Intergovernmental Committee is hereby established with the following duties:
(a) to study questions concerning the application and operation of this Convention; and
(b) to collect proposals and to prepare documentation for possible revision of this Convention.
2. The Committee shall consist of representatives of the Contracting States, chosen with due regard to equitable geographical distribution. The number of members shall be six if there are twelve Contracting States or less, nine if there are thirteen to eighteen Contracting States and twelve if there are more than eighteen Contracting States.
3. The Committee shall be constituted twelve months after the Convention comes into force by an election organized among the Contracting States, each of which shall have one vote, by the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works, in accordance with rules previously approved by a majority of all Contracting States.
4. The Committee shall elect its Chairman and officers. It shall establish its own rules of procedure. These rules shall in particular provide for the future operation of the Committee and for a method of selecting its members for the future in such a way as to ensure rotation among the various Contracting States.
5. Officials of the International Labor Office, the United Nations Educational, Scientific and Cultural Organization and the Bureau of the International Union for the Protection of Literary and Artistic Works, designated by the Directors–General and the Director thereof, shall constitute the Secretariat of the Committee.
6. Meetings of the Committee, which shall be convened whenever a majority of its members deems it necessary, shall be held successively at the headquarters of the International Labor Office, the United Nations Educational, Scientific and Cultural Organization and the Bureau of the International Union for the Protection of Literary and Artistic Works.
7. Expenses of members of the Committee shall be borne by their respective Governments.
Article 33
[Languages]
1. The present Convention is drawn up in English, French and Spanish, the three texts being equally authentic.
2. In addition, official texts of the present Convention shall be drawn up in German, Italian and Portuguese.
Article 34
[Notifications]
1. The Secretary–General of the United Nations shall notify the States invited to the Conference referred to in Article 23 and every State Member of the United Nations, as well as the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works:
(a) of the deposit of each instrument of ratification, acceptance or accession;
(b) of the date of entry into force of the Convention;
(c) of all notifications, declarations or communications provided for in this Convention;
(d) if any of the situations referred to in paragraphs 4 and 5 of Article 28 arise.
2. The Secretary–General of the United Nations shall also notify the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works of the requests communicated to him in accordance with Article 29, as well as of any communication received from the Contracting States concerning the revision of the Convention.
IN FAITH WHEREOF, the undersigned, being duly authorised thereto, have signed this Convention.
DONE at Rome, this twenty–sixth day of October 1961, in a single copy in the English, French and Spanish languages. Certified true copies shall be delivered by the Secretary–General of the United Nations to all the States invited to the Conference referred to in Article 23 and to every State Member of the United Nations, as well as to the Director–General of the International Labor Office, the Director–General of the United Nations Educational, Scientific and Cultural Organization and the Director of the Bureau of the International Union for the Protection of Literary and Artistic Works.
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26/10/1961
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01/03/2007
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Đang cập nhật
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Còn hiệu lực
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