Luận văn Environmental Protection Right toward Fair and Equitable Treatment and Indirect Expropriation regulations in EVIPA and Recommendations for Vietnam

HO CHI MINH CITY UNIVERSITY OF LAW THE MANAGING BOARD OF ADVANCED PROGRAMS  TRAN MINH THAO STUDENT ID: 1753801012182 ENVIRONMENTAL PROTECTION RIGHT TOWARD FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN EVIPA AND RECOMMENDATIONS FOR VIETNAM BACHELOR’S THESIS ACADEMIC YEAR: 2017 - 2021 MAJOR: INTERNATIONAL LAW HO CHI MINH CITY - 2021 Acknowledgement I want to express my sincere thanks to Ms Nguyen Thi Lan Huong from Ho Chi Minh City University of Law for her guidance on outline of this essay Thanks to her I am able to visualize the purpose and method to research on this interesting topic Besides, I also extend my thanks to Mr Ngo Hoang Kim Nguyen, my academic advisor, who was always concerned and helpful to me during my four years at university Last but not least, I would like to thank my family and all of my friends for their spiritual support and encouragement as I strive towards my goal Commitment I hereby declare that this thesis “Environmental Protection Right toward Fair and Equitable Treatment and Indirect Expropriation regulations in EVIPA and Recommendations for Vietnam” is wholly my own work, unless otherwise referenced or acknowledged I will bear complete responsibility for my commitment Tran Minh Thao rd July , 2021 Table of Contents PREAMBLE 1 JUSTIFICATION OF THESIS: LITERATURE REVIEW 2.1 Materials in Vietnamese 2.2 Materials in foreign languages PURPOSE OF THESIS RESEARCH DELIMITATION RESEARCH METHODOLOGIES 6 STRUCTURE OF THESIS CHAPTER 1: OVERVIEW ON ENVIRONMENTAL PROTECTION RIGHT TOWARD FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN INTERNATIONAL INVESTMENT LAW 1.1 OVERVIEW ON FAIR AND EQUITABLE TREATMENT STANDARD IN INTERNATIONAL INVESTMENT LAW 1.1.1 The historical origin of Fair and Equitable Treatment standard 1.1.2 Definition and content of Fair and Equitable Treatment standard 10 1.1.3 Requirements of Fair and Equitable Treatment 13 1.1.3.1.The obligation of vigilance and protection 13 1.1.3.2.Due process including non-denial of justice 13 1.1.3.3.Lack of arbitraness and non-discrimination 15 1.1.3.4.Transparency and stability of legal and business framework and the protection of investors’ legitimate expectations 15 1.2 OVERVIEW ON INDIRECT EXPROPRIATION IN INTERNATIONAL INVESTMENT LAW 17 1.2.1 Definition of indirect expropriation 17 1.2.2 Requirements for a lawful Indirect Expropriation 20 1.2.2.1 Public purpose 20 1.2.2.2.Non-discrimination 22 1.2.2.3.Due process of law 22 1.2.2.4 Payment of compensation 24 1.2.2.5.Additional requirements under IIAs 28 1.3 ENVIRONMENTAL PROTECTION RIGHT IN INTERNATIONAL INVESTMENT LAW 28 1.3.1 Conflict of interest between the foreign investors’ right and the Environmental Protection right in International Investment Law 28 1.3.2 Police powers doctrine 30 1.3.3 Environmental Protection right in New Generation Internation Investment law 34 SUB-CONCLUSION: 39 CHAPTER 2: ENVIRONMENTAL PROTECTION RIGHT TOWARD FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN EVIPA AND RECOMMENDATIONS FOR VIETNAM 40 2.1 ENVIRONMENTAL PROTECTION RIGHT TOWARD FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN EVIPA 40 2.1.1 Preamble of EVIPA 40 2.1.2 Provisions affirming the State’s right to enact policies and implement measures for environmental protection 41 2.1.3 Provisions on Fair and Equitable Treatment 42 2.1.4 Provisions on Indirect Expropriation .44 2.1.5 Evaluating Environmental Protection Right on Fair and Treatment and Indirect Expropriation regulations in EVIPA 46 2.2 RECOMMENDATIONS FOR VIETNAM ON THE APPLICATION THE FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN EVIPA TOWARDS ENVIRONMENTAL PROTECTION GOAL 46 2.2.1 Maintaining the legal framework's stability and uniformity 46 2.2.2 Ensuring the suitability of environmental protection measures .47 2.2.3 Strengthening the capacity of the competent authorities .47 SUB-CONCLUSION: 48 CONCLUSION 49 Lists of abbreviations ASEAN Association of South East Asian Nations BIT Bilateral Investment Treaty COMESA Investment Agreement for the Common Investment Area of the Common Market for Eastern and Southern Africa CPTPP The Comprehensive and Progressive Agreement for Trans-Pacific Partnership EU European Union EU – CADANA CETA EU – Canada Comprehansive Economic and Trade Agreement EVFTA EU – Vietnam Free Trade Agreement EVIPA EU – Vietnam Investment Protection Agreement FCN United States treaties on Friendship, Commerce and Navigation FDI Foreign direct investment FET Fair and Equitable Treatment FTA Free Trade Agreement GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade 1994 GSO General Statistics Office ICJ International Court of Justice ISDS Investor – State dispute settlement NAFTA North American Free Trade Agreement OECD The Organisation for Economic Cooperation and Development UNCTAD United Nations Conference on Trade and Development WTO World Trade Organization PREAMBLE Justification of thesis: Despite the negative effects of COVID-19, Vietnam is one of the few countries that recorded positive growth in foreign direct investment in early 2021 As per the statistics of General Statistics Office (GSO), The total investment capital in the first quarter of 2021, estimated at US$ 10.13 billion, increased by 18.5% over the same period last year As pointed out, foreign investment, especially foreign direct investment (FDI), plays a significant role in Vietnam’s economy in the current period To enhance the international trade and foreign investment in Vietnam between Vietnam and the EU, in July 2015, Vietnam had successfully negotiated the EU – Vietnam Free Trade Agreement (EVFTA) to the intensive economic corporation However, in 2017, to ensure investment protection and investment dispute settlement issues, EU and Vietnam considered separating the original EVFTA to EVFTA and EU – Vietnam Investment Protection Agreement (EVIPA) Although in August 2020, EVFTA officially entered into force, EVIPA has not had EU members’ ratification yet However, the EVIPA is expected to attract investment and modern technology from Europe into Vietnam and protect investors and investments in EU and Vietnam 1The COVID-19 crisis caused a dramatic fall in FDI The Global FDI flows decreased by up to 40% in 2020 and are projected to decrease by to 10 % in 2021 For more details, see: UNCTAD, “World Investment Report 2020, International production beyond the pandemic”, UNCTAD (2020), “World Investment Report 2020, International Production beyond the Pandemic”, United Nations Publications, New York, available at: https://unctad.org/system/files/official-document/wir2020_en.pdf (last accessed on: April 13, 2021) Statistic on Foreign Indirect Investment in the first quarter (from 01/01/2021 to 20/3/2021) by General Statistics Office of Vietnam (GSO), available at https://www.gso.gov.vn/du-lieu-va-so-lieu-thongke/2021/04/dau-tu-truc-tiep-nuoc-ngoai-quy-i-nam-2021 (last accessed on: April 10, 2021) The regulatory regime of foreign investments in the modern international investment agreement (IIAs) should generally respond to two different objectives On the one hand, the attraction of foreign investments is a crucial element to promote the economic and social development of the host countries On the other hand, policy and lawmakers should ensure that the economic and social development is sustainable, not detrimental to some fundamental values such as the consumers' health, the environment, the workers' rights or any other domestic objective considered essential for the community established in the investment-host states Therefore, in addition to the broader scope and more profound level of commitments regarding investment issues, sustainable development is one main characteristic of modern IIAs in general, as well as EVIPA in particular While, the primary purpose of the IIAs that is predominately protecting and enhancing the investment considered to contrast with the environmental protection and social development issues by the host states, which is inherent in the sovereignty of the State The dispute practice has indicated that the regulation of the environmental policies can be challenged by claiming for breach of the investment principles Therefore, that makes the host states should take into consideration when implementing the foreign investment protection commitments and pursuing the goal of sustainable development and environmental protection simultaneously Vietnam is the potential investment market with foreign investors, however, the majority of investment sections in Vietnam are concentrated in heavy industries with a high ability to cause environmental pollution In fact, by 2013, only 5% of FDI investing enterprises in Vietnam had high technology, 80% had medium technology, and the rest 14% were using low technology This statistic reflects completely Hanoi Law University (2017), Textbook on International Investment Law, Youth Publishing House, Preface contradicts expectations as well as claims to bring advanced technologies and applications into production in Vietnam of the foreign investors Therefore, the number of foreign investors who not comply with environmental laws in Vietnam and cause severe environmental consequences during the investment process is highly alarming To restrict this problem, the government has conducted many different solutions affecting foreign investors' investment and claimed those were the most effective measures to environmental protection However, those measures can be brought lawsuits because violating the fair and equitable treatment obligation (FET) or creating unlawful indirect expropriation conduct in the BIT or FTA that Vietnam was the member Therefore, the research on the relationship between FET and indirect expropriation regulations and environment protection rights of the host State in provisions of EVIPA to find out effective precaution measures against the dispute between EU investors and Vietnam’s government in the future is extremely necessary For these reasons, the author decided to study the topic: “Environmental Protection Right toward Fair and Equitable Treatment and Indirect Expropriation regulations in EVIPA and Recommendations for Vietnam” as the bachelor’s thesis Nguyễn Tuyền, (30/3/2016), “Ngày nhiều doanh nghiệp FDI gây ô nhiễm Việt Nam”, Dân Trí news, available at https://dantri.com.vn/kinh-doanh/ngay-cang-nhieu-doanh-nghiep-fdi-gay-o-nhiem-o-viet-nam20160330164417696.htm (last accessed on June 25, 2021) EVIPA's preamble truly reflects the investment trend of the twenty-first century, with more comprehensive concerns, particularly in terms of environmental protection In comparison to the traditional BITs that Vietnam has signed, this is regarded as an outstanding feature 2.1.2 Provisions affirming the State’s right to enact policies and implement measures for environmental protection The EVIPA affirms “right to regulate within their territories to achieve legitimate policy objectives” such as protection of environment 116 In my opinion, this regulation has overcome its own shortcomings in the other IIAs Accordingly, other IIAs' “right to regulation” provisions frequently provide for consistency of the “right to regulate” provision with other IIA provisions that are considered redundant and have little effect on the right to environment protection of the host state Besides, Article 2.2.2 also stipulates that: “For greater certainty, this Chapter shall not be interpreted as a commitment from a Party that it will not change its legal and regulatory framework, including in a manner that may negatively affect the operation of investments or the investor's expectations of profits” The above regulation serves as confirmation that changes to the legal and regulatory framework by themselves not result in a violation of the FET clause, and thus have significant implications for the host state's environmental protection goal Therefore, Article 2.2 is the breakthrough in EVIPA, the regulation of the “right of regulation” not only concretizes the sustainable development goals that the parties have acknowledged at the Preamble but also creates guidance and direction for arbitration panel in resolving environmental disputes 116 Article 2.2.1, EVIPA 41 2.1.3 Provisions on Fair and Equitable Treatment The Article 2.5.2 of the EVIPA (Treatment of Investment) requires a Party to provide fair and equitable treament to investor of the other Party and their investment This Article provides a closed list of criteria which can be used to determine whether a violation of fair and equitable treatment occurred Those criteria include “a denial of justice in criminal, civil or administrative proceeding” 117 proceedings” , “a fundamental breach of due process in judicial and administrative 118 , “manifest arbitrariness” 119 , “targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief” 120 such as coercion, abuse of power or similar bad faith conduct” , “abusive treatment 121 Therefore, FET in EVIPA is defined in a narrow manner than the unqualified FET clauses and FET clause linking to the mimimun standard or international law in other IIAs It could be argued that the host state's change of environmental policies and enactment of environmental protection measures not constitute a violation of the FET standard, which must be assessed based on the nature of the measure in accordance with the listed criteria With a clear scope and content, this method allows for more predictable FET clause implementation Nonetheless, the EVIPA also foresees a possibility of expanding list of criteria by the Article 2.5.2(f) and Article 2.5.3 Hence, the host state also breaches the obligation of FET even if the treatment is not mentioned at point (a) to (e) when “the Parties have so agreed in accordance with the procedures provided for in Article 117 118 119 120 121 Article 2.5.2 (a), EVIPA Article 2.5.2 (b), EVIPA Article 2.5.2 (c), EVIPA Article 2.5.2 (d), EVIPA Article 2.5.2 (e), EVIPA 42 4.3” However, the application of this content in practice is unlikely applied in practice For Article 2.5.3 to be applicable, the Parties have to amend the Agreement by the procedures 122 in accordance with Article 4.3 According to the Author's subjective opinion, this provision is precautionary instead of expanding the scope and content of the FET clause The Article also stipulates that “A breach of another provision of this Agreement, or of a separate international agreement, does mot estabish that there has been a breach of this Article” 123 This provision clarifies the relationship between FET and a breach of another provision or agreement Accordingly, the purpose of this provision is to prevent arbitration panel from automatically finding a breach of the FET standard when another provision in the IIA has been breached Concerning the provisions on investors' legitimate expectations 124 , the criterion of legitimate expectation is considered independently, but only when the creteria from paragraphs to of are satisfied This regulation is intended to limit the arbitrary application of legitimate expectation in order to broaden the scope of the FET clause's application Besides, the arbitration panel “may take into account whether a Party made a specific representation to an investor of the other Party to induce a covered investment that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain that investment, but that the Party subsequently frustrated” As a result, the arbitration panel's consideration of the 122 Article 4.3, EVIPA stiputes that: “1 The Parties may amend this Agreement An amendment shall enter into force after the Parties exchange written notifications certifying that they have completed their respective applicable legal procedures as provided for in Article 4.9 (Entry into Force) Notwithstanding paragraph and where provided for in this Agreement, the Parties may adopt in the Committee a decision amending this Agreement This is without prejudice to the completion of each Party's applicable legal procedures” 123 Article 2.5.4, EVIPA 124 Article 2.5.4, EVIPA 43 legitimate expectation is not a mandatory obligation but will be based on their assessments on a case-by-case basis 2.1.4 Provisions on Indirect Expropriation Indirect expropriation is clearly defined in Article 2.7.1 of EVIPA: “A Party shall not nationalise or expropriate the covered investments of investors of the other Party either directly, or indirectly through measures having an effect equivalent to nationalizaton or expropriation…” Requirements for lawful expropriation include four essential critera in IIAs that are “public purpose” “due process of law” 126 , “non-discriminatory basis” adequate and effective compensation” 128 127 125 , , “payment of prompt, In general, the above regulations are fundamental and not novel, and they can be found in many IIAs The regulation explaining the concept of indirect expropriation is a noteworthy point in the regulation on indirect expropriation Thereby, “indirect expropriation occurs if a measure or series of measures by a Party has an effect equivalent to direct exproprition, in that it substantially deprives the investor of the fundamental attributes of property in its investment including the right to use, enjoy 129 and dispose of its investment, without formal tranfer to title or outright seizure” On the other hand, EVIPA also provide that listing criteria for a finding of indirect expropriation, including: “the economic impact of the measure or series of measures, although the fact that a measure or series of measures by a Party has adverse effect on the economic value of an investment, standing alone, does not establish that such 125 126 127 128 129 Article 2.7.1 (a), EVIPA Article 2.7.1 (b), EVIPA Article 2.7.2 (c), EVIPA Article 2.7.2 (d), EVIPA Annex 4-1 (b), EVIPA 44 an expropriation has occurred”, “the duration of the measure or series of measures or of its effects”, “the character of the measure or series of measures, in particular its object, context and intent” 130 The determination of whether or not a measure or series of measure is considered as the indirect expropriation, the arbitration panel has to dựa vào in a specific factual situation and a case-by-case fact-based inquiry inquiry 131 The clarifying indirect expropriation regulation in EVIPA can ensure that host states can rely on the above criteria to enact and enforce environmental measures without facing allegations of breach of obligations and compensation claims from foreign investors Thereby, the “non-discriminatory measures or series of measures by a Party Futhermore, Annex 4-3 stipulates that “Non-discriminatory measures or series of measures by a Party that are designed to protect legitimate public policy objectives not constititue indirect expropriation, except in the rare circumstances where the impact of such measure or series of measure is so severe in light of its purpose that it appears manifestly excessive” This is an exception to the indirect expropriation provision and allows the host state to have more policy space to be flexible when faced with specific circumstances, such as protecting legitimate environmental policy, and thus be able to justify failure to comply with the obligation to protect foreign investors' interests under the provisions of EVIPA 130 131 Annex 4-2, EVIPA Supra note 130 45 2.1.5 Evaluating Environmental Protection Right on Fair and Treatment and Indirect Expropriation regulations in EVIPA In general, the provisions of the EVIPA Agreement are well understood and consistently applied The relationship between environmental protection rights and the FET standard, as well as indirect expropriation, is inferred from EVIPA's in each individual regulation Therefore, when compared to the BITs signed by Vietnam, host states' environmental protection right in EVIPA are more guaranteed, uniform, and valid in practice As a result, those regulations have clearly demonstrated the progress of the new generation IIAs with many outstanding regulations, solving the shortcomings in traditional IIAs and, thus, partially overcoming the asymmetry between the host state's right to environmental protection and investor rights, particularly in FET and indirect expropriation regulations 2.2 Recommendations for Vietnam on the application the fair and equitable treatment and indirect expropriation regulations in EVIPA towards environmental protection goal It can be seen that, from the perspective of the host state, Vietnam will face many risks and may be sued by foreign investors based on the regulations of EVIPA when promulgating and implementing regulations to ensure the right to protect the environment As a result, the Author will make the following recommendations to address this issue 2.2.1 Maintaining the legal framework's stability and uniformity Changing policies and legal regulations are unavoidable in a country's development, and Article 2.2 affirms the State's right to enact policies, implement measures, and change the legal framework pertaining to environmental issues However arbitrarily changing the legal framework, resulting in a loss of investment for investors during the investment process, can still violate the FET standard or result 46 in an expropriation claim Vietnam's legal policies and regulations, in particular, are regarded as unstable, and there is sometimes overlap in legal provisions within the same legal branch or between different branches of law, resulting in the policy being updated on a frequent basis On the other hand, the government provides investment commitments, while much of the responsibility for environmental management including environmental protection policy promulgation is delegated to local authorities This decentralization may result in conflicts between the authorities' decisions, raising the possibility of a dispute with investors and, as a result, addressing the issue of ensuring the legal framework's stability, particularly in policies on investment protection and environmental protection As a result, the regulations and policies issued and applied by competent agencies should be in consistent, non-arbitrary, and non-overlapping and the stability of domestic legal regulations should also be ensured 2.2.2 Ensuring the suitability of environmental protection measures Environmental protection measures are inextricably linked to the interpretation and implementation of EVIPA, so it is critical to understand and apply these measures appropriately, based on solid arguments and foundations Therefore, the purpose of environmental protection measures, ensuring non-discriminatory and legal basis, enactment of the measure based on science, and the necessity to apply such measure must all be included in the measures to be put in place Furthermore, environmental measures affecting investors must be issued in accordance with the order of competence under Vietnamese law and must be transparent 2.2.3 Strengthening the capacity of the competent authorities As can be seen, EVIPA has not yet taken effect, so the interpretation and application of some provisions are still not entirely clear Furthermore, Vietnam's lack of experience in international investment disputes, as well as its limited professional 47 qualifications and management capacity, is viewed as a weakness in the implementation of EVIPA regulations, particularly environmental protection right regulations As a result, in order for the rights and obligations committed in the EVIPA to be properly and fully comprehended, and for these rights and obligations to be effectively implemented, Vietnam must urgently train, foster, and improve the capacity of officials in charge of enforcing investment laws at the national and local level Furthermore, experts of international investment are responsible for providing advice and recommendations to governments and law enforcement agencies based on their research in order to understand and apply regulations properly, avoiding disputes Sub-conclusion: Environmental protection right related to fair and environmental policies, treatment standards, and indirect expropriation appear in many forms in EVIPA, from the Preamble to content provisions such as: the provisions affirming the State's right to enact and implement protection measures, provisions on fair and treatment, and provisions on indirect expropriation The contents of these regulations all have a significant impact on the balance between host states' right to environmental protection and foreign investors' right, particularly when it comes from indirect expropriation and FET obligations Thereby, the author suggests some experiences for Vietnam in applying the provisions of EVIPA based on the assessment and analysis of the above regulations, including: maintaining the legal framework's stability and uniformity, providing appropriate environmental protection measures, and strengthening capacity in the application of EVIPA regulations 48 Conclusion Although EVIPA has not yet taken effect as expected, it will greatly encourage EU investment in Vietnam in the near future However, in addition to the expected economic benefits of EVIPA, the issue of environmental pollution in Vietnam during the investment process is a source of concern It is clear that the number of investors who violate Vietnam's environmental laws and cause severe environmental consequences during the investment process is extremely concerning As a result, the government has taken numerous measures to address this issue Those measures, however, can result in lawsuits due to violations of the fair and equal treatment obligations (FET) or the creation of unlawful indirect expropriation conduct As a result, the author analyzes and evaluates the environmental protection regulations in EVIPA in relation to the FET standard and indirect expropriation using the theoretical foundation of international investment law Since then, the author has suggested some practical experiences for Vietnam in implementing EVIPA provisions in order to ensure Vietnam's right to environmental protection The author hopes that this bachelor thesis will contribute to the study of regulations in EVIPA, particularly the relationship between the right to environmental protection and the FET standard, as well as indirect expropriation 49 LIST OF REFERENCE MATERIALS REFERENCE MATERIALS IN VIETNAMESE I DISPUTE CASE II BOOKS Hanoi Law University (2017), “Textbook on International Investment Law”, Youth Publishing House, available at: http://pltmqt.hlu.edu.vn/Images/Post/files/Khoa%20PLTMQT/GT%20L%C4 %90TQT%20SONG%20NGU-2017.pdf Trinh Hai Yen, “Textbook on international investment”, National potical Publishing House III CONFERENCES Record of the conference: “New – Generation Free Trade Agreement and Non-Trade Issues”, organized by the Faculty of International Law at Ho Chi Minh University of Law on October 2020 IV ARTICLE AND ACADEMIC PAPER Nguyen Thi Lan Huong (2019), “Liên hệ tiêu chuẩn “đối xử công thỏa đáng” với mục tiêu bảo vệ môi trường CPTPP – Một số đề xuất cho Việt Nam”, Legal Science Journal, Vol 06/2019, available at: https://iluatsu.com/quoc-te/tieu-chuan-doi-xu-cong-bang-va-thoa-dang-voimuc-tieu-bao-ve-moi-truong/ Nguyen Tuyen, (2016), “Ngày nhiều doanh nghiệp FDI gây nhiễm Việt Nam”, Dân Trí news, available at https://dantri.com.vn/kinh- doanh/ngay-cang-nhieu-doanh-nghiep-fdi-gay-o-nhiem-o-viet-nam20160330164417696.htm Nguyen Xuan My Hien, “Sự phát triển tiêu chuẩn đối xử công thỏa đáng hiệp định thương mại tự hệ mới”, Legal Science Journal, Vol 06(127)/129, p 48 – 59, available at: https://tapchikhplvn.hcmulaw.edu.vn/module/xemchitietbaibao?oid=e52fe37 4-1e6f-4843-a7b6-638cce62a0cb Pham Thi Hien (2019), Bồi thường thiệt hại trường hợp truất hữu gián Luật Đầu tư quốc tế - Kinh nghiệm cho Việt Nam, Vietnamese Journal of Legal Sciences, Volume 02(123)/2019, available at: https://tapchikhplvn.hcmulaw.edu.vn/module/xemchitietbaibao?oid=b23bd1 52-9915-4de9-a1dc-3d3fa23e9f2b Tran Thang Long (2019), “Áp dụng quy định trường hợp ngoại lệ môi trường pháp luạt đầu tư quốc tế số so sánh với thực tế Việt Nam”, Nghiên cứu Lập pháp Journal, Vol 04/2019, available at: http://www.lapphap.vn/Pages/TinTuc/210256/Ap-dung-quy-dinh-truonghop-ngoai-le-ve-moi-truong-trong-phap-luat-dau-tu-quoc-te-va-mot-so-sosanh-voi-thuc-te-Viet-Nam.html V WEBSITE https://www.gso.gov.vn REFERENCE MATERIALS IN FOREIGN LANGUAGE I INTERNATIONAL TREATIES, LAW, LEGISLATIONS AND RULES Angola-United Kingdom BIT (2000) Argentina-Mexico BIT (1996) Bangladesh-United States BIT Canada-Colombia FTA (2008) Chile-Philippines BIT (1997) and Malaysia-United Arab Emirates BIT (1992) Chile-Tunisia BIT (1998) China-Costa Rica BIT (1999) China-Peru FTA (2009) COMESA 10 CPTPP 11 Draft Convention on Protection of Foreign Property 12 Economic Agreement of Bogota 13 EVIPA 14 Germany- Pakistan BIT (2009) 15 Havana Charter for an International Trade Organization 16 Hong Kong, China-Thailand BIT (2006) 17 India-United Kingdom BIT (1994) 18 Israel-Slovakia BIT (2001) 19 Malaysia-Uruguay BIT (1996) 20 Mozambique-Netherlands BIT (2001) 21 Netherlands-Oman BIT (2009) 22 Peru-Singapore FTA (2008) 23 Republic of Korea- Mexico BIT (2000) 24 Republic of Korea-Nigeria BIT (1997) 25 Resolution 1803 (XVII), 14 December 1962, Declaration on Permanent Sovereignty over Natural Resources 26 Resolution 3281 (XXIX), 12 December 1974, The Charter of Economic Rights and Duties of States (A/RES/29/3281) 27 The Belgium/Luxembourg-Colombia BIT (2009) 28 United States treaties on Friendship, Commerce and Navigation (FCN) 29 US – Uruquay BIT 30 US Model BIT 2004 II BOOKS August Reinisch (2008), Standards of Investment Protection, Oxford University Press, United Kingdom Ian Brownlie (2008), Principles of Public International Law, Seventh edition, Oxford University Press, Oxford Kathryn Gordon, Joadchim Pohl (2011), Environmental Concerns in International Investment: A Survey, OCED Working Papers on International Investment, OECD publishing, p 8, available at: http://dx.doi.org/10.1787/5kg9mq7scrjh-en OCED, (2004), Fair and Equitable Treament Standard in International Investment Law, OCED Publishing, OCED Working Papers on International Investment, available at: https://www.oecd.org/daf/inv/investmentpolicy/WP-2004_3.pdf OECD (2011), Harnessing Freedom of Investment for Green Growth Freedom of Investment Roundtable April 14, 2011, OECD publishing, p 2, avalable at: https://www.oecd.org/daf/inv/internationalinvestmentagreements/47721398 pdf Rudolf Dolzer, Christoph Schreuer (2012), Principles of International Investment Law, Oxford University Press, United Kingdom Surya P Subedi (2008), International Investment Law – Reconciling Policy and Principle, Oxford and Portland, Oregon: Hart Publishing UNCTAD (2012), Expropriation UNCTAD Series on Issues in International Investment Agreements II, New York and Geneva, available at: https://unctad.org/system/files/official-document/unctaddiaeia2011d5_en.pdf UNCTAD (2012), Fair and Equitable Treament UNCTAD Series on Issues in International Investment Agreements II, New York and Geneva, available at: https://unctad.org/system/files/official-document/unctaddiaeia2011d7_en.pdf 10 UNCTAD (2020), “World Investment Report 2020, International Production beyond the Pandemic”, United Nations Publications, New York, available at: https://unctad.org/system/files/official-document/wir2020_en.pdf 11 UNCTAD (2020), International Investment Agreements: Reform Accelerator, New York and Geneva: United Nations III ARTICLE AND ACADEMIC PAPER Alessandra Mistura (2019), Enhancing Environmental Through the Integration of International Civil Liability Principles, available at: https://www.iisd.org/itn/en/2019/04/23/enhancing-environmental-protectionin-international-investment-law-through-the-integration-of-internationalcivil-liability-principles-alessandra-mistura/ Catharine Titi, (2018), Police Power doctrine and international investment law, In Filippo Fontanelli, Andrea Gattini and Attila Tanzi (eds) General Principles of Law and International Investment Arbitration, Brill, 2018 Jorge E Viñuales, “The environmental regulation of foreign investment schemes under international law” in P.-M Dupuy and J E Viñuales (2012), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards, Cambridge University Press Kathryn Gordon, Joadchim Pohl (2011), Environmental Concerns in International Investment: A Survey, OCED Working Papers on International Investment Oliver J Lissitzyn (1936), “The Meaning of the Term Denial of Justice in International Law”, The American Journal of International Law, Vol 30, No.4 Suzanne A Spears (2010), The Quest for Policy Space in a New Generation of International Investment Agreements, Journal of International Economic Law, Vol 13, Issue Ying Zhu (2018), Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development, 58 Nat Resources J 319, available at: https://digitalrepository.unm.edu/nrj/vol58/iss2/14 IV DISPUTE CASE Chemtura v Canada Duke Energy v Ecuador Occidental v Ecuador PSEG v Turkey Saluka Investments BV v Czech Republic ... Environmental Protection right toward Fair and Equitable Treatment and Indirect Expropriation regulations in EVIPA and recommendations for Vietnam 2.1 Environmental Protection right toward Fair and Equitable. .. AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION REGULATIONS IN EVIPA AND RECOMMENDATIONS FOR VIETNAM 40 2.1 ENVIRONMENTAL PROTECTION RIGHT TOWARD FAIR AND EQUITABLE TREATMENT AND. .. Right on Fair and Treatment and Indirect Expropriation regulations in EVIPA 46 2.2 RECOMMENDATIONS FOR VIETNAM ON THE APPLICATION THE FAIR AND EQUITABLE TREATMENT AND INDIRECT EXPROPRIATION