str. 1(hereinafter referred to as 'this Agreement')
The Governments of the People's Republic of Bangladesh, the People's Republic of China, the Republic of India, the Lao People's Democratic Republic, the Republic of Korea and the Democratic Socialist Republic of Sri Lanka, Participating States of the Asia-Pacific Trade Agreement (APTA) (hereinafter referred to as 'Participating States');
AFFIRMING the importance of sustaining economic growth and development in all Participating States through joint efforts in liberalizing trade and promoting intra-APTA trade and investment flows;
RECOGNIZING that investment is an important source of knowledge and finance for sustaining the pace of economic, industrial, infrastructure and technology development;
FURTHER RECOGNIZING the need to take action to attract higher and sustainable levels of investment in Participating States;
RECALLING the decision of the APTA Ministers in their Ministerial Declaration adopted at the Second Session of the Ministerial Council in Goa, India on 26 October 2007 to direct the Standing Committee to adopt modalities for the extension of negotiations into other areas, such as non-tariff measures, trade facilitation, services, and investment, as soon as possible;
DETERMINED to further strengthen the position of Participating States as competitive investment destinations through a more liberal and transparent investment environment;
REFERRING to Article 11 of APTA, which states that Participating States shall explore future areas of cooperation with regard to border and non-border measures to supplement and complement the liberalization of trade; and further referring to Article 26 of APTA on Amendments to the Asia-Pacific Trade Agreement;
HAVE AGREED AS FOLLOWS:
Definitions
For the purposes of this Agreement
1. "APTA investor" means:
2. (a)a natural person having the citizenship of a Participating State in accordance withitsapplicablelaws;or
3. (b) any legal entity duly constituted or otherwise organized under applicable law of a Participating State, whether for profit or otherwise, and whether privately-owned or government-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association; or
4. (c) any legal entity duly constituted or otherwise organized under applicable law of any State, whether for profit or otherwise, including any corporation, trust, partnership, joint venture, sole proprietorship or association and owned or controlled, directly or indirectly, .by natural persons or legal entities as defined in (a)and (b) above. 5. 2 (a) "Investment"means everykind of asset invested or acquired by an APTA investorinaccordancewiththe laws oftheParticipatingStateinwhoseterritory the investment is made and includes, though not exclusively:
6. (i) movable and immovable property and other propertyrights such as mortgage, liens or pledges;
7. (ii) shares, stocks, debentures and similar forms of participation;
8. (iii) bonds,loans and other forms of debt instruments;
9. (iv) rights to money or to any performance under contract having a financial value;
10. (v) intellectual property rights, goodwill, technical processes and know-how as conferred by law;
11. (vi) business concessions conferred by law or under contract, including concessions to search for, extract or exploit oil and other minerals and othernaturalresources. 12. (b) For the purposes of paragraph 1, returns that are invested shall be treated as investments andany alterationin the formin whichassets areinvested or reinvested shall not affect their character asinvestments. 3. "Returns" means the amounts, monetary or in kind, yielded by investments and, in particular, though not exclusively, includes profits, interest, capital gains, dividends, royalties or payments in connection with intellectual property rights, and all kinds of fees. 4. "Secretariat"' means the secretariat of the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). 1.
str. 4The objectives of this Agreement are to:
- (a) substantially increase the flow of investments into Participating States;
- (b) jointly promote Participating States as attractive investment destinations;
- (c) strengthen and increase the competitiveness of Participating States' economic sectors;
- (d) progressively reduce or eliminate investment regulations and conditions which may impede investment flows and the operation of investment projects in Participating States;
- (e) progressively strive towards a harmonized investment regime among all Participating States;
- (f) promote the free flow of investments and transfer of technology among Participating States.
str. 4Participating States shall, for the implementation of the obligations under this Agreement, initiate negotiations no later than a date to be decided by the Standing Committee, for the joint development and implementation of the following programmes within a timeframe to be decided:
- (a) cooperation and facilitation programme as specified in Schedule I;
- (b) promotion and awareness programme as specified in Schedule II;
- (c) liberalization programme as specified in Schedule IIl; and
- (d) protection programme as specified in Schedule IV. 2. Participating States shall submit Action Plans for the implementation of the programmes through the secretariat by a date to be decided by the Standing Committee. 3. The Action Plans shall be reviewed every two years by the Ministerial Council after considerationbytheStandingCommitteetoensurethat theobjectivesof thisAgreement are achieved.
str. 51. Each Participating State shall make available to the Standing Comimittee through the secretariat all laws, regulations, procedures, administrative rulings of general application which pertain to, or affect, the operation of this Agreement. This shall also apply to international agreements pertaining to or affecting investment to which a Participating State is also a signatory. 2. Each Participating State shall promptly and at least annually inform the Standing Committee through the secretariat of the introduction of any new or any changes to existing matters set out in paragraph 1 of this article which affect investments or its commitmentsunderthisAgreement. 3. Nothing in this Agreement shall require any Participating State to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to thepublicinterest,orwhichwouldprejudicelegitimate commercialinterests ofparticularenterprises,publicorprivate.
str. 5Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Participating States where like conditions prevail, or a disguised restriction on investment flows, nothing in this Agreement shall be construed toprevent anyParticipatingStatefrom adopting and implementingmeasures:
1. which it considers necessary for the protection of its national security, the protection of public morals and maintenance of public order, the protection of human, animal and plant life and health, and the protection of articles of artistic, historicaland archaeologicalvalue;
2. which are aimed at ensuring the equitable or effective imposition or collection of direct taxes in respect of investments or investors of Participating States; or
3. which it considers necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement including those relating to:
4. (a) the prevention of deceptive and fraudulent practices;
5. (b) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
6. (c) Safety. 1 The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one ofthefundamentalinterest ofsociety.
str. 61. TheMinisterialCouncilshallreviewtheimplementationofthisAgreementeverytwo years. For this purpose, the Ministerial Council shall comprise the Ministers authorized to review this Agreement by the Heads of Government of each Participating State. 2. The Standing Committee shall supervise and coordinate the implementation of this Agreement and submit its recommendationsfor review to theMinisterial Council. 3. For the purpose of implementing paragraph 2, the Standing Committee shall establish a Working Group on Investment (WGl） comprising senior officials from relevant governments of the Participating States. 4. The Working Group on Investment shall meet at least twice yearly and report to the Ministerial Council through theStandingCommittee. 5. The ESCAP secretariat shall be the secretariat of the Working Group on Investment.
str. 61. A specific dispute settlement mechanism may be established for the purposes of this Agreementwhichshallform anintegralpartofthisAgreement. 2. Unless a specific dispute settlement mechanism is established under paragraph 1 of this article, with regard to any dispute among Participating States arising out of the interpretation or implementation of this Agreement, articles 20 and 21 of APTA shall applymutatismutandis.
str. 61. Least developed country Participating States shall be provided flexibility in the submission andimplementationof allSchedulesandActionPlansunderthisAgreement. The Participating States shall provide special concessions to these countries in their SchedulesandActionPlans. 2. Special consideration shall be given by Participating States to requests from least developed country Participating States for technical assistance and cooperation arrangements designed to assist them in expanding their investment relations with other Participating States. 3. Special consideration in accordance with paragraph 1 hereof shall also be extended to Sri Lanka.
str. 7The provisions, Schedules and Action Plans of this Agreement may be amended or modified through the consent of all the Participating States and such amendments shall become effective upon acceptance by all Participating States.
str. 7The Schedules, Action Plans, Annexes and any other arrangement or agreements arising under thisAgreementshallformanintegralpart of thisAgreement.
str. 71. Each Participating State shall designate a contact point to facilitate communications between the Participating States on any matter covered by this Agreement, including the exchangeofinformationrelevantto theimplementation and operation of thisAgreement. 2. At the request of any Participating State, the contact point of the requested Participating Stateshallidentify theofficeor official responsiblefor thematter and assistinfacilitating communicationwiththerequestingParticipatingState.
str. 71. In the event of inconsistency between this Agreement and the APTA Framework Agreement on thePromotion and Liberalization of TradeinServices,the relevant provisions of the APTA Framework Agreement on the Promotion and Liberalization of Trade in Services shall apply with regard to liberalization of trade in services as defined in Article I, Paragraph 2(c) of the General Agreement on Trade in Services (commercial presence") of the World Trade Organization and the relevant provisions of this Agreement shall apply with regard to the investment protection measures to be stipulated according toScheduleIV of thisAgreement. 2. This Agreement shall enter into force upon the deposit of instruments of ratification or acceptance by all signatory Governments with the Executive Secretary of ESCAP, who shall promptly furnish a certified copy thereof to each Participating State. The signatory Governments undertake to deposit their instruments of ratification or acceptance within six months after the date of signing of thisAgreement. -
str. 83. IN WITNESS WHEREOF, the undersigned, duly authorized representatives of the signatory States, have signed the present Agreement on behalf of their respective Governments.
str. 10Done at Seoul, this fifteenth day of December two thousand and nine, in one single copy in the English language.
str. 10MuhammadFarukKhan Minister ofCommerce
str. 11CHINA:
—)1
Yi Xiaozhun
ViceMinisterofCommerce
str. 11Jyotiraditya M.
str. 12Scindia
Minister of Statefor Commerce and Industry
str. 12NamViyaketh Minister of Industry and kymy lrokhu
Hur Kyung-Wook The FirstVice Minister of Strategy and Finance
str. 14OCRATICSOCIALISTREPUBLICOFSRILANKA:
SirisenaLiyanagama
Secretary,Ministry ofExport Development and International Trade
str. 15In respect of the Cooperation and Facilitation Programme, Participating States, with the assistance ofthesecretariatwhererelevant,shall take:
str. 15- (a) increase transparency of the Participating State's investment rules, regulations, policies and procedures through the publication of such information on a regular basis and bymaking such informationwidely available;
- (b) simplify and expedite procedures for applications, approvals and implementation of investment projects at all levels; and
- (c) expand the number of bilateral agreements for the avoidance of double taxation among theParticipating States.
str. 15- (a) establish a database for APTA Supporting Industries and APTA Technology suppliers;
- (b) establish a database to enhance the flow of APTA investment data and informationoninvestment opportunitiesinAPTA;
- (c) promote public-private sector linkages through regular dialogues with the APTA business community and other international-organizations to identify investment impediments within and outside APTA and propose ways to improve the APTA investment environment;
- (d) identify target areas for technical cooperation, e.g. development of human resources, infrastructure, supporting industries, small and medium-sized enterprises, information technology, industrial technology, R & D and coordinate efforts within APTA with other international organizations involved in technical cooperation;
- (e) examine the possibility of an APTA Agreement for the avoidance of double taxation.
str. 16In respect of the Promotion and Awareness Programme, Participating States, in cooperation with the secretariat where relevant,shall:
1. Organize joint investment promotion activities, e.g. seminars, workshops, roadshows, investmentforums;
2. Conduct regular consultations among investment agencies of Participating States on investment promotion matters;
3. Organize investment-related training programmes for officials of investment agencies of Participating States;
4. Exchange lists of promoted sectors/industries where Participating States could encourage investments from other Participating States and initiate promotional activities;
5. Examine possible ways by which the investment agencies and apex chambers of commerce and industry of Participating States can support the promotion efforts of other Participating States; and
6. Establish a Joint Investment Promotion Committee to facilitate the promotional activities.
str. 17In respect of the Liberalization Programme, Participating States agree to enter into negotiations to progressively improve their investment regime with a view to promoting freer investment among theAPTAParticipatingStates.
str. 18In respect of the Protection Programme, Participating States shall:
1. Formulate and conclude an APTA Agreement for the Promotion and Protection of Investments. That Agreement shall include, at a minimum, provisions related to the followingissues:
- (a) post-establishment national treatment and Most-Favoured Nation treatment to APTA investors;
- (b) full security and protection of the investments made in accordance with the legislation of the host country by APTA investors and protection against unreasonable or discriminatory measures impairing the operation, management, maintenance, use, enjoyment, extension, disposition or liquidation of such investments;
- (c) protection against expropriation and nationalization, except for public use, or public purpose, or in the public interest, and under due process of law, on a non- discriminatory basis and upon payment of prompt, adequate and effective compensation;
- (d) transfer of the capital, net profits, dividends, royalties, technical assistance and technical fees, interests and other income, accruing from any investments of APTA investors, including a provision for safeguarding the balance of payments;
- (e) dispute settlement procedures in cases of dispute relating to an investment between anyParticipating State and an investor of another Participating State or betweenParticipatingStates;
- (f) the imposition or enforcement of performance requirements. 2. Protect and uphold the principles of intellectual property rights, at a minimum in accordance with the principles and rules of the WTO Agreement on Trade-Related Aspects of IntellectualPropertyRights.