MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY ___________________ MASTER THESIS MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law DOAN VIET THANG Hanoi – 2019 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY ___________________ MASTER THESIS MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law Code: 8310106 Full name: Doan Viet Thang Supervisor: Assoc. Nguyen Minh Hang Hanoi - 2019 REASSURANCE I hereby assure that this master thesis is exclusively made by myself and that all data and results stated in this master thesis are honest. In addition, I hereby assure that all of the supports in the process of implementation cited in the master thesis have been specified its sources. The author Doan Viet Thang ACKNOWLEDGEMENT First of all, I would like to express my deep gratitude and great appreciation to my supervisor Assoc. Nguyen Minh Hang, for her exemplary guidance and valuable encouragement throughout the course of this thesis. The support and guidance given by hers have been priceless. I also take this opportunity to express a deep sense of gratitude to all the professors and lecturers of master program of International Trade policy and law for their valuable supports and guidance, which helped me in growing in knowledge and experience through various stages. Furthermore, I would like to especially thank for the support, encouragement and assistance from my family, colleagues and friends during the time of this thesis. Hanoi, 28th Jun 2019 i TABLE OF CONTENTS TABLE OF CONTENTS . i LIST OF ABBREVIATIONS . iv LIST OF FIGURES. vii SUMMARY OF THESIS RESEARCH RESULTS .1 CHAPTER 1: BASIC THEORETICAL ISSUES ON INVESTOR - STATE DISPUTE . An overview of international investment and Investor - State dispute . Conception of international investment . Conception of investment . Conception of international investment . An overview of international investment dispute . Conception of international investment dispute . Classification of international investment disputes . Investor - State dispute (ISD) . Conception of Investor - State dispute . Features of Investor - State dispute . An overview of mechanism and measures to prevent international investment disputes . Concept of investor-State dispute prevention . Investor-States dispute prevention mechanisms . Investor-States dispute prevention measures .20 CHAPTER 2: MECHANISM AND MEASURES FOR PREVENTING INVESTOR – STATE DISPUTES - INTERNATIONAL EXPERIENCE . The situation of Investor - State disputes settlement in the world . The situation of Investor - State disputes settlement by the diplomatic protection method . The situation of Investor-State disputes settlement by the Courts’ mode . The situation of Investor-State disputes settlement by the Arbitration method. The situation of Investor - State disputes settlement by the other methods . Mechanism and prevention measures in settling international investment disputes in some countries . Mechanism and prevention measures in settling international investment disputes in Jordan . Mechanism and prevention measures in settling international investment disputes in Colombia . Mechanism and prevention measures in settling international investment disputes in Korea . Mechanism and prevention measures in settling international investment disputes in Peru .37 CHAPTER 3: LESSONS FOR VIETNAM IN PREVENTING INVESTOR – STATE DISPUTES . The basis for proposing measures to prevent Investor - State disputes . Current situations of foreign investment in Vietnam . Situation of Investor - State disputes and Investor-State dispute settlement in Vietnam. Situation of Investor - State disputes in Vietnam . Situation of ISD settlement in Vietnam . Situation of Vietnamese on prevent Investor - State dispute. Lessons learn for Vietnam to prevent Investor-State disputes and applied solutions . Lessons for Vietnam to prevent Investor-State disputes . Focus on the warning mechanism and dispute prevention . Establish a specialized agency to represent the State in the prevention and resolution of ISD. Complete methods of settling disputes with foreign investors in the country . Pay attention to negotiating and signing IIAs . Investor-State dispute prevention mechanism and measures for Vietnam . Mechanisms and measures to prevent international investment disputes remotely . Select and appraise the capacity of foreign investors and determine and prioritize investment sectors in accordance with the law to prevent disputes.3 Monitor closely the implementation of investment projects of foreign investors. Mechanisms and measures that block disagreements and conflicts develop into disputes. Ensure authority to negotiate and settle - budgetary authority. Institutional response: ombuds and mediation services . State-State cooperation in dispute prevention .84 LIST OF REFERENCES .86 iv LIST OF ABBREVIATIONS Abbreviation Description AAA American Arbitration Association ACIA ASEAN Comprehensive Investment Agreement AF Additional Facility ANDI Algeria's Agence National de Development des Investments APR Arbitration Procedures Rules ASEAN Association of Southeast Asian Nations BIT Bilateral investment treaty BOT Build-Operate-Transfer BT Build-Transfer BTA Bilateral Trade Agreement BTO Build-Transfer-Operate DRCAFTA Dominican Republic Central America Free Trade Agreement ECT Energy Charter Treaty FDI Foreign Direct Investment FI Foreign Investment FTA Free Trade Area GDP Gross Domestic Product ICC International Chamber of Commerce ICDR International Center for Dispute Resolution ICSID International Centre for Settlement of Investment Dispute IIA International investment agreements v ISD Investor-State Dispute ISDS Investor-State Dispute Settlement JCAA Japan Commercial Arbitration Association JIC Jordan Investment Commission JICA Japan International Cooperation Agency KOTRA Korea Trade-Investment Promotion Agency MOJ Ministry of Justice MoFA Ministry of Foreign Affairs MPI Ministry of Planning and Investment NAFTA North American Free Trade Agreement NHK-ITEC NHK Integrated Technology Inc ODA Official Development Assistance OECD Organization for Economic Cooperation and Development OFIO Office of the Foreign Investment Ombudsman OIO Office of the Foreign Investment Ombudsman OPIC Overseas Private Investment Corporation PCA Permanent Court of Arbitration PMU Project Management Unit SCC Stockholm Chamber of Commerce TPP Trans-Pacific Strategic Economic Partnership Agreement Urban-Civil Works Construction Investment Management UCCI Authority of Ho Chi Minh city UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development vi US United State USA United States of America USD United States dollar VIAC Vietnam International Arbitration Center VND Vietnam dong VTV Vietnam Television VUS.BTA Vietnam-United State Bilateral Trade Agreement WIPO World Intellectual Property Organization vii LIST OF FIGURES Figure 2.1 - Getting prepared: the institutional system of Colombia .2 - The Republic of Korea Office of the Foreign Investment Ombudsman .3 - Alert system of Peru .42 viii SUMMARY OF THESIS RESEARCH RESULTS In the trend of international integration, up to now, Vietnam has signed nearly 70 investment treaties. Most bilateral investment treaties stipulate issues related to the settlement of Investor-State dispute (ISD). Most investment treaty regulates that ISDs can be settled according to the procedures of the International Centre for Settlement of Investment Disputes (ICSID), under the ICSID Additional Facility or any other arbitration organization. However, the ISD settlement at arbitration is not only costly, but these arising ISDs will reduce the confidence of foreign investors in Vietnam's investment environment. Therefore, the purpose of the thesis is providing measures to prevent possible ISDs. After the research process, the thesis should give the following results: Firstly, give the concept of "Investor-State dispute". Secondly, on the basis of studying the status of ISD settlement in some countries, synthesizing mechanisms and preventive measures of ISD in those countries. Thirdly, assess the current status of legal provisions on investment dispute settlement between foreign investors and the Vietnamese Government. Fourthly, analyze some cases between foreign investors and the Vietnamese government, thereby drawing lessons for Vietnam in the prevention and settlement of ISD. Fifthly, propose measures to prevent disputes between foreign investors and the Vietnamese government. Rationale of the study The implementation of opening policy, attraction of foreign investment (FI) in Vietnam makes economic relationship in general and foreign investment relationship in particular in Vietnam become more and more diversified and complicated. In that context, it is difficult to avoid investment disputes. The disputes can be a foreign investor-domestic investor dispute or a foreign investor to foreign investor dispute or foreign investor- Vietnamese Government dispute. In recent years, foreign investor-Vietnamese Government disputes in investment activities are increasing. Practice of international investment dispute settlement shows that arbitration is a dispute settlement method that investor and State usually take precedence to choose; and practice also shows that Vietnam has not had experience in the dispute settlement at arbitration yet. Unfruitful dispute settlement will harm Vietnam’s attraction for foreign investment and reduce Vietnam’s completion in drawing foreign investment. Therefore, besides good settlement of international investment dispute, it is important to prevent international investment disputes. It is the reason the author selects the theme: “Mechanism and measures to prevent international investment disputes – International experience and lessons for Vietnam” as my graduation thesis.1 Situation of research topics oversea In overseas, there have been many studies mentioning the theoretical issues about ISD and ISD resolution. Some projects can be listed as follows: - Dr. Gantz: “Settling international investment disputes through arbitration” (2004) – The aim of this study is to take stock of and to analyse the Investor-State Arbitration under ICSID, the ICSID Additional Facility and the UNCTAD Arbitral Rules 2 - Research "Investor-State Dispute Settlement Public Consultation: 16th May – 23rd July 2012" (2012) which gathers reports of experts at the 16th round table of the Organization for Economic Cooperation and Development (OECD). - Research "Investor - State Dispute Settlement and Impact on Investment Rulemaking" (2008) study of the United Nations Conference on Trade and Development (UNCTAD). The aim of this study is to take stock of and to analyse the major developments in the interpretation of procedural and substantive international investment agreement (IIA) provisions as contained in bilateral investment treaties and economic integration agreements with investment provisions. It addresses the implications of those developments for countries, emphasizing the particular needs of developing countries. It presents some conclusions and reflections on possible next steps that countries could take to implement the lessons learned from the investor-State dispute settlement experience. - Research “Dispute settlement provisions in international investment agreements: A large sample survey” by Joachim Pohl, Kekeletso Mashigo and Alexis Nohen (2012). This document surveys Investor-State Dispute Settlement (ISDS) provisions in a sample of 1,660 bilateral investment treaties (BITs) and other bilateral agreements with investment chapters (mainly Free Trade Agreements, FTAs). The treaties in the sample were concluded by the 54 countries that participate in the “Freedom of Investment” (FOI) Roundtables with any other country. The survey presents a statistical portrait of ISDS provisions of this treaty sample that is both comprehensive and detailed. The intention is to provide a factual and statistical catalogue of treaty content and not to in any way engage the OECD or countries participating in the FOI process regarding interpretation of treaty language in an arbitral setting, regardless of whether these treaties are in force or not. In some cases, the bilateral treaties are also compared with selected multilateral agreements with investment chapters (e. NAFTA, Energy Charter Treaty) - Research “Reform of Investor-State Dispute Settlement: In search of a roadmap” (2013) .This note outlines five main reform paths: Promoting alternative 3 dispute resolution; Tailoring the existing system through individual IIAs; Limiting investor access to ISDS; Introducing an appeals facility; Creating a standing international investment court. And “Global Value Chains: Investment and Trade for Development” by UNCTAD. – The world investment report by UNCTAD In general, these works investigate theoretical and practical issues of ISD resolution based on international investment agreements (IIA), bilateral investment agreements (BIT) and on the basis of ISD solving experience. But each study only touches on certain issues, but there is no comprehensive study on preventing ISD. These studies study the resolution of ISD by developed and developing countries, but there is no separate study for Vietnam. Regarding ISD mechanisms and precautions, there are a number of studies abroad mentioned, such as : - Research “Investor-State Disputes: Prevention and Alternatives to Arbitration I” by UNCTAD (2010). This is reports summarizing the opinions of experts in this field around the world from both direct and online.
Cơ chế và biện pháp ngăn ngừa tranh chấp đầu tư quốc tế: Kinh nghiệm quốc tế và bài học cho Việt Nam
Tài liệu nghiên cứu Luận văn mechanism and measures to prevent international investment disputes international, tổng hợp lý thuyết và thực hành, cung cấp kiến thức chuyên sâu về .
Trường đại học
Foreign Trade UniversityChuyên ngành
International Trade Policy and LawNgười đăng
Ẩn danhThể loại
master thesisPhí lưu trữ
35 PointMục lục chi tiết
THÔNG TIN CHI TIẾT
Tác giả: Doan Viet Thang
Người hướng dẫn: Assoc. Nguyen Minh Hang
Trường học: Foreign Trade University
Chuyên ngành: International Trade Policy and Law
Đề tài: Mechanism And Measures To Prevent International Investment Disputes – International Experience And Lessons For Vietnam
Loại tài liệu: master thesis
Năm xuất bản: 2019
Địa điểm: Hanoi
Tài liệu có tiêu đề Cơ chế và biện pháp ngăn ngừa tranh chấp đầu tư quốc tế: Kinh nghiệm quốc tế và bài học cho Việt Nam cung cấp cái nhìn sâu sắc về các cơ chế và biện pháp nhằm ngăn ngừa tranh chấp trong lĩnh vực đầu tư quốc tế. Tài liệu này không chỉ phân tích các kinh nghiệm từ các quốc gia khác mà còn đưa ra những bài học quý giá cho Việt Nam trong việc cải thiện môi trường đầu tư. Độc giả sẽ tìm thấy những lợi ích thiết thực từ việc hiểu rõ các cơ chế pháp lý và chính sách có thể áp dụng để bảo vệ quyền lợi của nhà đầu tư, từ đó thúc đẩy sự phát triển kinh tế bền vững.
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