EU-Thailand FTA - investment chapter (draft 2013)

CHAPTER I
GENERAL PROVISIONS

Article (...)
Objectives, coverage and definitions

1. The Parties, reaffirming their respective commitments under the WTO Agreement and their commitment to create a better climate for the development of trade and investment between the Parties, hereby lay down the necessary arrangements for the progressive and reciprocal liberalisation of trade in services and investment and for cooperation on e-commerce.

2. Consistent with the provisions of this Title, each Party retains the right to adopt, maintain and enforce measures necessary to pursue legitimate policy objectives such as the protection of the society, the environment and public health, the integrity and stability of the financial system, the promotion of security and safety, the promotion and protection of cultural diversity.

3. This Title shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.

Nothing in this Title shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits [1] accruing to any Party under the terms of a specific commitment in this Chapter and its Annexes.

4. For purposes of this Title:

(a) a ’natural person of the EU’ means a national of one of the Member States of the European Union in accordance with its legislation and a ’natural person of Thailand’ means a national of Thailand in accordance with its legislation;

(b) ’juridical person’ means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;

(c) a ’juridical person of the EU’ or a ’juridical person of Thailand’ means a juridical person set up in accordance with the laws of a Member State of the European Union or of Thailand respectively, and engaged in substantive business operations [2] in the territory of the EU or of Thailand, respectively;

(d) Notwithstanding the preceding paragraph, shipping companies established outside the EU or Thailand and controlled [3] by nationals of a Member State of the EU or of Thailand, respectively, shall also be beneficiaries of the provisions of this Title, with the exception of Chapter [chapter on Investment Protection] and of Chapter [chapter on investor-to-state dispute settlement], if their vessels are registered in accordance with their respective legislation, in that Member State or in Thailand and fly the flag of a Member State or of Thailand;

(e) an ’enterprise’ means a juridical person, branch or representative office set up through establishment, as defined under this article;

(f) ’subsidiary’ of a juridical person of a Party means a juridical person which is effectively controlled by another juridical person of that Party [4];

(g) ’establishment’ means the setting up, including the acquisition of, a juridical person and/or creation of a branch or a representative office in Thailand or in the EU respectively;

(h) ’economic activities’ include activities of an industrial, commercial and professional character and activities of craftsmen, but do not include activities performed in the exercise of governmental authority;

(i) the ’operation’ of an investment includes the conduct, management, maintenance, use, enjoyment, sale or other form of disposal of the investment

(j) ’services’ include any service in any sector except services supplied in the exercise of governmental authority;

(k) ’services and activities performed in the exercise of governmental authority’ means services or activities which are performed neither on a commercial basis nor in competition with one or more economic operators;

(l) cross-border supply of services means the supply of a service:

  • (i) from the territory of a Party into the territory of the other Party
  • (ii) in the territory of a Party to the service consumer of the other Party;

(m) a ’service supplier’ of a Party means any natural or juridical person of a Party that seeks to supply or supplies a service;

(n) a ’measure’ means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;

(o) ’measures adopted or maintained by a Party’ means measures taken by:’

  • (i) central, regional or local governments and authorities; and
  • (ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;

(p) ’investment’ means every kind of asset which is owned, directly or indirectly or controlled, directly or indirectly by investors of one Party in the territory of the other Party [5], that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, the assumption of risk or a certain duration. Forms that an investment may take include:

  • (i) tangible or intangible, movable or immovable property, as well as any other property rights, such as leases, mortgages, liens, and pledges;
  • (ii) an enterprise, shares, stocks and other forms of equity participation in an enterprise including rights derived therefrom;
  • (iii) bonds, debentures, and loans arid other debt instruments, including rights derived therefrom;
  • (iv) other financial assets including derivatives;
  • (v) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;
  • (vi) claims to money, or to other assets or any contractual performance having an economic value;
  • (vii) intellectual property rights, as defined in Chapter Y of this Agreement [Intellectual Property], technical processes, know-how and goodwill; Returns that are invested shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their qualification as investments.

(q) an ’investor’ means a natural person or a juridical person of a Party that seeks to make, is making or has already made an investment in the territory of the other Party.

(r) ’returns’ means all amounts yielded by or derived from an investment or reinvestment, including profits, dividends, capital gains, royalties, interest, payments in connection with intellectual property rights, payments in kind and all other lawful income.

(s) ’freely convertible currency’ means a currency which is widely traded in international foreign exchange markets and widely used in international transactions.

(t) ’territory of a Party’ includes, for the purposes of this Title, the exclusive economic zones and continental shelf, to the extent that the Party has sovereign rights in respect of those zones pursuant to international law. [Without prejudice to the final placement of this paragraph]

CHAPTER II
INVESTMENT

[Note: The text on investment represents a preliminary draft text which does not include the substantive obligations relating to investment protection and investor-state dispute settlement. Furthermore, the inclusion of investment protection obligations will also have an impact on the formulation of other basic provisions such NT and MEN. The EU therefore intends to propose additional text in this chapter once it has obtained the appropriate negotiating mandate.]

SECTION 1
LIBERALISATION OF INVESTMENTS

Article (...)
Scope and definitions

1. This Section applies to measures adopted or maintained by a Party affecting the acquisition [6] or operation of an investment, including establishment in all economic activities, by an investor of the other Party in its territory.

2. The provisions of this Section, with the exception of Article 4 paragraph 2 and 3 (on national treatment) and Article 6 paragraph 2 (on MFN) relating to the operation of an investment, shall not apply to:

(a) mining, manufacturing and processing [7] of nuclear materials;

(b) production of or trade in arms, munitions and war material;

(c) audio-visual services;

(d) national maritime cabotage [8] and

(e) domestic and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:

  • (i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
  • ’aircraft repair and maintenance services during which an aircraft is withdrawn from service’ mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance.
  • (ii) the selling and marketing of air transport services;
  • ’selling and marketing of air transport services’ mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions,
  • (iii) computer reservation system (CRS) services;
  • ’computer reservation system (CRS) services’ mean services provided by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued.
  • (iv) groundhandling services;
  • ’ground handling services’ mean the supply at an airport of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering; air cargo and mail handling; fuelling of an aircraft, aircraft servicing and cleaning; surface transport; flight operation, crew administration and flight planning. Ground handling services do not include security, aircraft repair and maintenance, or management or operation of essential centralised airport infrastructure such as de-icing facilities, fuel distribution systems, baggage handling systems, and fixed intra-airport transport systems
  • (v) airport operation services;
  • ’airport operation services’ mean the supply of air terminal, airfield and other airport infrastructure operation services on a fee or contract basis.
  • Airport operation services do not include air navigation services.

3. Government procurement is dealt with by Chapter [X (on public procurement).] and nothing in this Section shall be construed to limit the obligations of the Parties under Chapter X on public procurement or to impose any additional obligation with respect to government procurement.

4. Subsidies are dealt with by Chapter [on competition and state aid] and the provisions of this Section do not apply to subsidies granted by the Parties.

5. Notwithstanding the provisions of paragraph 4, the provisions of Article 8 [Performance Requirements] shall apply to subsidies, to the extent that measures adopted or maintained by a Party fall outside the scope of Article III: 8 (b) of the GATT.

Article (...)
Market Access

1. With respect to market access through establishment, each Party shall accord treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in the schedule of specific commitments contained in Annexes [....] (lists of commitments on liberalisation of investments).

2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its schedule of specific commitments contained in Annexes [...] (lists of commitments on liberalisation of investments) are defined as:

(a) limitations on the number of enterprises, whether in the form of numerical quotas, monopolies, exclusive rights or other requirements related to establishment such as economic needs tests;

(b) limitations on the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

(c) limitations on the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;

(d) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment;

(e) measures which restrict or require specific types, of legal entity or joint ventures through which an investor of the other Party may perform an economic activity.

(f) limitations on the total number of natural persons, other than key personnel and graduate trainees as defined in Article XY, that may be employed in a particular sector or that an investor may employ and who are necessary for, and directly related to, the performance of the economic activity in the form of numerical quotas or the requirement of an economic needs test.

Article (...)
National Treatment

1. Upon entry into force of this Agreement, in the sectors inscribed in the schedule of specific commitments in Annexes [...] (lists of commitments on liberalisation of investments of both Parties) and subject to any conditions and qualifications set out therein, a Party shall accord to investors of the other Party and to their investments treatment no less favourable than that accorded to its own like investors with respect to the establishment of an enterprise in its territory.

2. For greater certainty, the obligation in paragraph 1 does not prevent a Party from adopting or maintaining specific requirements relating to the establishment or the operation, in its territory, of branches and representative offices of juridical persons incorporated in the territory of the other Party, which are justified by legal or technical differences between such branches and representative offices as compared to like branches and representative offices of juridical persons incorporated in its own territory or, with respect to financial services, for prudential reasons.

3. Such requirements shall not go beyond what is strictly necessary as a result of such legal or technical differences or, with respect to financial services, for prudential reasons.

Article (...)
Most Favoured Nation Treatment

[text to be provided at a later stage]

Article (...)
Schedule of specific commitments

The sectors liberalised by each of the Parties pursuant to this Section and the terms, limitations, conditions and qualifications referred to in Articles 3 and 4 are set out in the schedules of commitments included in Annexes [lists of commitments on liberalisation of investments].

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Other Obligations

Nothing in this Chapter shall be deemed to limit the right of investors and investments of a Party to benefit from more favourable treatment provided in the territory of the other Party, where such treatment is accorded by its legislation.

Article (...)
Performance Requirements

1. In the sectors inscribed in its schedule of specific commitments in Annexes [lists of commitments on liberalisation of investments of both Parties] and subject to any conditions and qualifications set out therein, neither Party may impose, or enforce any of the following requirements, or enforce any commitment or undertaking, or condition the receipt or continued receipt of an advantage, in connection with the establishment or operation of any investment in its territory:

(a) to export a given level or percentage of goods or services;

(b) to achieve a given level or percentage of domestic content;

(c) to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from natural persons or enterprises in its territory;

(d) to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;

(e) to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;

(f) to transfer technology, a production process or other proprietary knowledge to a natural person or enterprises in its territory; or

(g) to supply exclusively from the territory of the Party a good produced or a service provided by the investment to a specific regional or world market.

2. The provisions of paragraph 1 shall not be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage in connection with any investment in its territory on compliance with a non-discriminatory requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development in its territory.

The provisions of paragraph 1 (f) shall not be construed to prevent the application of a requirement imposed or a commitment or undertaking enforced by a court, administrative tribunal or competition authority, in order to remedy an alleged violation of competition laws.

3. The provisions of paragraph 1 subparagraphs (a), (b) and (c), and 3 (a) and (b), do not apply to qualification requirements for goods or services with respect to participation in export promotion and foreign aid programmes.

4. In the sectors inscribed in its Schedule of Specific Commitments in Annexes [lists of commitments on liberalisation of investments] and subject to any conditions and qualifications set out therein, a Party shall neither impose nor maintain any measure inconsistent with its obligations under the WTO Agreement or under Articles [X,Y,Z - provisions in the Agreement that restate those obligations] of this Agreement.

Article (...)
Senior Management and Boards of Directors

[text to be provided at a later stage]

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Economic Needs Tests

No Party may impose discriminatory [9] Economic Needs Tests prior to the establishment of an enterprise in its territory.

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Foreign Shareholding and Joint Venture Requirements

1. No Party shall impose joint venture requirements or limit the participation of foreign capita) by imposing a maximum percentage limit on foreign shareholding or on the total value of individual or aggregate foreign investment.

2. A Party may maintain the measures covered by Paragraph 1 in sub-sectors representing not more than 10% of the numbers of all sub-sectors covered by this Agreement [10] as identified in its schedule of specific commitments.

Article (...)
Review

1. With a view to progressively liberalising investment conditions, the Parties shall regularly review the legal framework relating to investment [11] and the investment environment, consistent with their commitments in international agreements.

2. In the context of the review referred to in paragraph 1, the Parties shall assess any obstacles to investment that have been encountered. With view to deepening the provisions of this Title, the Parties shall identify appropriate mechanism to address such obstacles, which could include further negotiations.

SECTIONS 2 AND 3
INVESTMENT PROTECTION AND INVESTOR-TO-STATE-DISPUTE SETTLEMENT

[text to be provided at a later stage]

CHAPTER III
CROSS BORDER SUPPLY OF SERVICES

Article (...)
Scope and definitions

This Chapter applies to measures of the Parties affecting the cross border supply of all services sectors with the exception of:

(a) audio-visual services;

(b) national maritime cabotage12; and

SECTION II
PROVISIONS OF GENERAL APPLICATION

Article (...)
Mutual recognition

1. Nothing in this Title shall prevent a Party from requiring that natural persons must possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.

2. For the purposes of the fulfillment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of investors and services suppliers, a Party may recognize the education or experience obtained, requirements met, or licenses or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.

Article (...)
Transparency and disclosure of confidential information

1. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements which pertain to or affect this Agreement. Each Party shall also establish one or more enquiry points to provide specific information to investors and services suppliers of the other Party, upon request, on all such matters. The Parties shall notify each other enquiry points within 3 months after entry into force of this agreement. Enquiry points need not be depositories of laws and regulations.

2. Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.

6. Subject to the provisions specified by this Article, in establishing the rules for the selection procedure, each Party may take into account legitimate public policy objectives, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.

Article (...)
Licencing and qualification procedures

1. Licencing and qualification procedures and formalities shall be clear, made public in advance and be such as to provide the applicants with a guarantee that their application will be dealt with objectively and impartially.

2. Licencing and qualification procedures and formalities shall be as simple as possible and shall not unduly complicate or delay the provision of the service. Any licencing fees [12] which the applicants may incur from their application should be reasonable and proportionate to the cost of the authorisation procedures in question.

3. Each party shall ensure that the procedures used by, and the decisions of, the competent authority in the licencing or authorisation process are impartial with respect to all applicants. The competent authority should reach its decision in an independent manner and not be accountable to any supplier of the services for which the licence or authorisation is required.

4. Where specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions.

5. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Party shall endeavor to establish the normal timeframe for processing of an application.

6. The competent authority shall, within a reasonable period of time after receipt of an application which it considers incomplete, inform the applicant, to the extent feasible identify the additional information required to complete the application, and provide the opportunity to correct deficiencies..

7. Authenticated copies should be accepted, where possible, in place of original documents.

8. If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle, the applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.

9. Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.

Footnotes:

[1The sole fact of requiring a visa for natural persons of certain countries and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment.

[2In line with its notification of the Treaty establishing the European Community to the WTO (WT/REG39/1), the EU-Party understands that the concept of "effective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the TFEU is equivalent to the concept of "substantive business operations". Accordingly, for a juridical person set up in accordance with the laws of Thailand and having only its registered office or central administration in the territory of Thailand, the EU Party shall only extend the benefits of this agreement if that juridical person possesses an effective and continuous economic link with the territory of Thailand.

[3A juridical person is controlled by another juridical person if the latter has the power to name a majority of its directors or otherwise to legally direct its actions.

[4A juridical person is controlled by another juridical person if the latter has the power to name a majority of its directors or otherwise to legally direct its actions.

[5As an investment, a juridical person is:
(i) "owned" by natural or juridical persons of one of the Member States of the EU or of Thailand if more than 50 per cent of the equity interest in it is beneficially owned by persons of that/a Member State of the EU or of Thailand respectively;
(ii) "controlled" by natural or juridical persons of one of the Member States of the EU or of Thailand if such persons have the power to name a majority of its directors or otherwise to legally direct its actions.

[6The term "acquisition" shall be understood as including capital participation in a juridical person with a view to establishing or maintaining lasting economic links.

[7For greater certainty, processing of nuclear materials includes all the activities contained in UN ISIC Rev.3.1 code 2330.

[8Without prejudice to the scope of activities which may be considered as cabotage under the relevant national legislation, national maritime cabotage under this chapter covers transportation of passengers or goods between a port or point located in Thailand or a Member State of the European Union and another port or point located in Thailand or that same Member State of the European Union, including on its continental shelf, as provided in the UN Convention on the Law of the Sea, and traffic originating and terminating in the same port or point located in Thailand or Member State of the European Union.

[9Discrimination should be understood in the meaning of Article 4(1).

[10The percentage shall be calculated as a share of the 155 sub-sectors listed in the WTO classification document MTN.GNS/W/120.

[11This includes this Chapter and Annexes XXX,

[12Licencing fees do not include payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal service provision.

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