Balancing fair and equitable treatment standard and environmental protection in international investment law

HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** - NGUYỄN HOÀNG NHI STUDENT ID: 1853801011291 BALANCING FAIR AND EQUITABLE TREATMENT STANDARD AND ENVIRONMENTAL PROTECTION IN INTERNATIONAL INVESTMENT LAW BACHELOR THESIS School year: 2018 - 2022 Supervisor: LL.M Nguyen Thi Lan Huong Ho Chi Minh City – Year 2022 HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** - NGUYỄN HOÀNG NHI STUDENT ID: 1853801011291 BALANCING FAIR AND EQUITABLE TREATMENT STANDARD AND ENVIRONMENTAL PROTECTION IN INTERNATIONAL INVESTMENT LAW BACHELOR THESIS School year: 2018 - 2022 Supervisor: LL.M Nguyen Thi Lan Huong Ho Chi Minh City – Year 2022 DECLARATION I declare that this thesis is the result of my research, which is implemented under the supervision of LL.M Nguyen Thi Lan Huong, ensures honesty, and complies with rules and regarding quotation, the note of references Therefore, I hereby take full responsibility for this declaration LIST OF ABBREVIATIONS ASEAN Association of Southeast Asian Nations BIT Bilateral Investment Treaty CIL Customary International Law CPTPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership (2018) EVIPA European Union-Vietnam Investment Protection Agreement 2019 FDI Foreign Direct Investment FET Fair and Equitable Treatment FTA Free Trade Agreement FTC Notes Notes of Interpretation of Certain Chapter 11 Provisions of North American Free Trade Agreement, issued by the Free Trade Commission on 31 July 2001 GATT General Agreement on Tariffs and Trade (1994) ICSID International Center for Settlement of Investment Disputes IIA International Investment Agreement IIL International Investment Law MST Minimum Standard of Treatment NAFTA North American Free Trade Agreement (1993) OECD Organization for Economic Cooperation and Development RCEP Regional Comprehensive Economic Partnership (2020) VCLT Vienna Convention on the Law of Treaties (1969) WTO World Trade Organization TABLE OF CONTENTS INTRODUCTION CHAPTER OVERVIEW ON FAIR AND EQUITABLE TREATMENT STANDARD AND ENVIRONMENTAL PROTECTION IN INTERNATIONAL INVESTMENT LAW 10 1.1 Theoretical issues with regard to fair and equitable treatment standard 10 1.1.1 Historical origin and meaning of fair and equitable treatment standard 10 1.1.2 Formulations and interpretation of fair and equitable treatment standard in international investment treaties 14 1.2 Environmental protection right of states 19 1.2.1 Legal basis of environmental protection right of states - right to regulate in the public interest 19 1.2.2 Regulations on environmental protection in international investment treaties 24 1.3 Conflicts between the obligation to accord fair and equitable treatment standard under international investment agreements and the exercise of the environmental protection right of the host state 33 CONCLUSION OF CHAPTER 36 CHAPTER FAIR AND EQUITABLE TREATMENT STANDARD AND ENVIRONMENTAL PROTECTION IN INTERNATIONAL INVESTMENT ARBITRATION AND RECOMMENDATIONS FOR VIETNAM 37 2.1 Fair and equitable treatment standard standard and environmental protection in international investment arbitration 37 2.1.1 Different approaches taken by arbitral tribunals in environment-related cases 37 2.1.2 Towards a balanced approach between fair and equitable treatment standard and environmental protection's right of the host state 55 2.2 Recommendations for Vietnam 66 2.2.1 Recommendations regarding investment treaty drafting 71 2.2.2 Recommendations regarding environmental policies and measures 73 CONCLUSION OF CHAPTER 76 THESIS CONCLUSION 77 INTRODUCTION Problem statement In this day and age, the enhancement of environmental protection standards, the progress made in the governance of sustainable development, together with the occurrence of many environmental incidents relating to investment activities have motivated governments to review, amend and update their domestic legal policies so as to keep them in line with social development requirements In such a context, states can be placed in a dilemma since at the same time, they have to comply with obligations to protect foreign investment regulated in international investment agreements (“IIAs”) Arbitral practice indicates that there are many disputes between the host states and foreign investors arising out of the country’s failure to maintain a favorable legal framework for investment when pursuing their non-commercial objectives.1 The harmony between the state’s objective to attract foreign direct investment (“FDI”) by affording investment protection and the protection of the environment has long been a matter of considerable concerns in international investment law (“IIL”), mainly in IIAs and in the process of resolving investor-state disputes To tackle this matter, states begin to review the content of their IIAs in an attempt to ensure both commitments regarding investment protection and sufficient policy space to exercise their sovereign rights concerning environmental issues Typical of such an attitude is the amendment of IIAs’ preamble, the incorporation of general and specific exceptions as well as new methods of regulation on standards of investment protection such as most favored nation standard, fair and equitable treatment (“FET”) standard and expropriation clauses.2 Among them, the FET standard is controversial among scholars and has Saverio Di Benedetto, International Investment Law and The Environment, Elgar International Investment Law, 2013, p Nguyen Thi Lan Huong, “Liên hệ tiêu chuẩn “đối xử công thỏa đáng” với mục tiêu bảo vệ môi trường CPTPP – Một số đề xuất cho Việt Nam” (The relationship between “Fair and Equitable” and environmental purpose in CPTPP – Recommendations for Vietnam), Vietnamese Journal of Legal Science, 2019, Volume 06, p 82-94 become the most common standard for the resolution of investment disputes in recent years, particularly those involving tensions between an investor’s rights and the state’s regulatory measures.3 This stems from the vague, general and inconsistent regulation of FET provisions in IIAs as well as the broad interpretation of such a standard.4 Following this is the possibilities of different interpretation of the FET standard in arbitral jurisprudence, thus restricting the predictability of the outcome of investor-state disputes A more serious consequence is that states may refrain from adopting legitimate environmental regulations for fear of being challenged (or threatened to challenge) by foreign investors before arbitral tribunals when investors feel that it is difficult to carry on their business in the host state or that value of their investments has diminished as a result of certain environmental regulations.5 With this situation in mind, the balance between the FET accorded to foreign investors regulated in IIAs and the regulatory power of states to pursue their environmental objectives is an urgent concern Thus, this thesis with the topic “Balancing fair and equitable treatment standard and environmental protection in international investment law” aims to analyze the FET standard, the environmental protection rights of states and their relevance in arbitral jurisprudence, thereby providing recommendations for Vietnam Literature review Many studies on the FET standard and its relations with the environment have been recorded internationally, mostly as part of the comprehensive research on IIL and sustainable development In Vietnam, however, FET standard and environmental protection have not been profoundly researched Existing literature relevant to this issue Suzanne A Spears, “The quest for policy space in a new generation of international investment agreements”, Journal of International Economic Law, 2010, Vol 13 No 4, p 1052 Ying Zhu, “Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development”, Natural Resources Journal, 2018, Volume 58, p 325 Satwik Shekhar, ‘Regulatory chill’: Taking right to regulate for a spin, Centre for WTO Studies, 2016, p 5-6 is limited, and where it is available, it pays attention to newly-concluded treaties entered into by Vietnam such as the Comprehensive and Progressive Agreement for TransPacific Partnership 2018 (“CPTPP”) 2.1 Materials in Vietnamese ● Books/ Textbooks Trinh Hai Yen, Textbook on International Investment Law, The Truth National Political Publishing House, Ha Noi, 2017: The textbook provides general knowledge of international investment law The author analyzes the FET standard and its application in practice in chapter V of the textbook The analysis on environmental protection is merely generally provided in section II Chapter VII of the textbook and its interaction with the FET standard has yet to be mentioned ● Scientific articles/ scientific research Tran Thang Long, “Áp dụng quy định trường hợp ngoại lệ môi trường pháp luật đầu tư quốc tế số so sánh với thực tiễn Việt Nam” (Application of Provision on Environmental Exception in International Investment Law and Comparisons with Vietnamese Practices), Legislative Studies Journal, 2019, No 4/2019: The article analyzes environmental exception provisions in IIAs and how they are applied in investment cases Thereby, the author compares them with the situation of Vietnam and offers some recommendations for Vietnam Although the article provides details about environmental protection, the focus of the study is on expropriation instead of the FET standard Nguyen Thi Lan Huong, “Liên hệ tiêu chuẩn “đối xử công thỏa đáng” với mục tiêu bảo vệ môi trường CPTPP – Một số đề xuất cho Việt Nam” (The relationship between “Fair and Equitable” and environmental purpose in CPTPP – Recommendations for Vietnam), Vietnamese Journal of Legal Science, 2019, Volume 06: The author analyzes how the FET standard is variably regulated under international investment treaties and the way it affects the FET interpretation in investment arbitral tribunal in practice Thereby, the author gives an insight into the relationship between FET standard and environmental protection objectives in CPTPP and offers some recommendations for Vietnam so as to effectively implement environmental protection policies without violating the FET standard in IIAs where Vietnam is a member However, since the scope of the article is limited to provisions under CPTPP, the author exclusively focuses on the FET standard that is linked to the customary international law (“CIL”), which cannot provide a general picture of the link between the FET standard and environmental objectives Nguyen Xuan My Hien, “Sự phát triển tiêu chuẩn đối xử công thỏa đáng hiệp định thương mại tự hệ mới” (The development of the FET standard in new generation free trade agreements), Vietnamese Journal of Legal Science, 2019, Volume 06: The article analyzes the definition, characteristics, purpose of the FET standard and compares how the FET standard is regulated in traditional IIAs and new generation IIAs, in order to see the attempt of states to address the conflict between the requirement of foreign investor protection and the host state’s sustainable development objective Yet, since the article does not specifically address the environmental objective of the host state and the focus is on the provisions of the FET standard under the CPTPP, further research on the FET and environmental protection is in need ● Theses Ngo Nguyen Thao Vy, “Quy định quyền bảo vệ môi trường nhà nước tiếp nhận đầu tư khuôn khổ hiệp định đầu tư quốc tế - Kiến nghị cho Việt Nam” (Regulations on environmental protection rights of the host state in international investment treaties - Recommendations for Vietnam), Master thesis, Ho Chi Minh City University of Law, 2018: The thesis analyzes states’ right to protect public interest in general and states’ right to protect the environment in particular through provisions under IIAs and practical case study The thesis also demonstrates recent trends in interpreting the right to protect the public interest of the host state Thereby, some recommendations e) are necessary and are applied and maintained only while necessary; and f) are applied in a transparent manner and in accordance with the respective national legislation For greater clarity, nothing under this paragraph shall be construed to limit the review by an arbitral tribunal of a matter when such exception is invoked.” Further, Article 12(3) of the China-Colombia BIT (2008) provides: “For greater clarity, this Article shall not be construed as an exception to the obligations set out in Article (Expropriation and Compensation) concerning compensation.” Such a provision resolves the above question raised by the CTPTT text regarding whether the “shall not be construed to prevent a Party from adopting or maintaining measures” clause will exempt the host state from any compensation liability with foreign investors when its regulatory measures affect their interests Similarly, Vietnam could consider incorporating into the treaty a clause clearly stating parties’ intent in this regard Finally, attention should also be paid to the preamble language of the investment treaty as it helps to identify parties’ objectives and thus, plays an important role in treaty interpretation Further, the express environmental concerns stipulated in the preamble will require the tribunals to take into account deference to regulatory power to adopt environmental measures of states when interpreting the FET standard Vietnam should adopt the preamble language of the CPTPP for its future IIAs since as presented above, the CPTPP expresses environmental protection as one of its direct objectives, instead of an underlying one, and uses strong words to promote such objective 2.2.2 Recommendations regarding environmental policies and measures Firstly, in order to properly implement commitments under IIAs as well as take advantage of opportunities accorded by those treaties, besides the investment treaty drafting, Vietnam should put focus on its implementation of environmental measures 73 When the competent authorities issue new regulations or apply administrative measures in an effort to protect the environment, requirements with respect to transparency and due process should be fulfilled Specifically, before introducing any measures that could affect foreign investors’ rights and interests, the government should provide a mechanism ensuring that investors are fully informed about the legal issues and given reasonable opportunities to raise their voice so as to find an appropriate resolution for both state and investors Besides, the right of foreign investors to make complaints with domestic authorities regarding the issuance and application of regulatory measures detrimental to their investment should be guaranteed In this vein, Vietnam can pursue their legitimate environmental policies if it is done on the basis of due process and in a transparent, non-discriminatory manner since investment tribunals normally pay special attention to those requirements when evaluating whether there is any IIA violation from the host country.273 However, fulfilling the above requirements can pose a challenge to Vietnam at the moment as the judicial and administrative systems in Vietnam are poorly organized and their relevant procedures are bureaucratic, especially in reviewing and amending administrative decisions in the investment sector.274 In the end, meeting such requirements helps Vietnam not only to avoid being challenged by foreign investors before an arbitral tribunal, but also attain significant legal stability and thereby enhance the reputation of the domestic market Secondly, as regards national environmental policies, while recent IIAs such as CPTPP or RCEP frequently mention the term “sustainable development”, this concept is mainly mentioned in guiding documents instead of being incorporated in substantive regulations of Vietnam Examples can be found in Decision No 432/QD-TTg of the Prime Minister on the approval of sustainable development strategy of Vietnam in the 273 274 Nguyen Thi Lan Huong, supra note 2, p 82-94 Ibid 74 period 2011-2022, or Resolution No 36-NQ/TW of the Party Central Committee (12th tenure) on the strategy for the sustainable development of Viet Nam's marine economy by 2030, with a vision to 2045 In the context that sustainable development has been given increasing attention at both national and international level, Vietnam should develop indicative legal documents and issue specific requirements to obtain the sustainable development objectives in the country Further, the Government could negotiate with other international trading partners (especially those members of enforced IIAs with no environment provisions as presented above) in order to conclude voluntary agreements that place emphasis on sustainable development EU-Vietnam Voluntary Partnership Agreement on Forest Law Enforcement, Governance and Trade is an example Such a document can be an effective tool for Vietnam to prevent the possibility of being challenged by foreign investors when implementing measures deferential to them 75 CONCLUSION OF CHAPTER Chapter has analyzed arbitral practice regarding the evaluation of the FET violation in environment-related cases Approaches taken by tribunals are inconsistent when assessing states’ environmental measures While some investment tribunals determine a high threshold for FET violation and thus, afford a great deal of regulatory space to states, others determine a low threshold for FET violation, leading to a strong possibility of liability for the host states A more balanced approach would be to accord less discretion to arbitral tribunals to interpret the FET standard by incorporating a deferential proportionality analysis in the assessment of FET violation By this means, tribunals are required to go through a step-by-step analysis including (i) suitability test, (ii) necessary test and (iii) proportionality stricto sensu, thereby restricting their discretion of interpretation From the perspective of the host state, in order to reduce the risks of being challenged by foreign investors before investment tribunals when adopting environmental measures, Vietnam should be prudent in investment treaty drafting as the text of IIAs is the primary source for tribunals to evaluate the case Additionally, Vietnam should review their current environmental policies and be cautious in every stage of introducing a new environmental measure Altogether, the ultimate purpose of every state is to some extent, strike a balance between the state’s obligation to accord foreign investors FET in IIAs on one hand, and its right to pursue environmental objectives within its territory on the other This will contribute significantly to sustainable development, both at a national and international level 76 THESIS CONCLUSION There is no doubt that economic development cannot be separated from sustainable development An effort to balance between the obligation of states to accord FET in IIAs to foreign investors and their environmental protection right must begin by analyzing theoretical issues concerning these concepts At the outset, the concept of FET and the state’s right to regulate in the public interest concerning environmental issues, alongside their various formulations and interpretation in IIAs have been examined Thereby, it is indicated that the conflict when these two concepts interacting with each other lies within their own nature and characteristics in the current IIL framework In practice, investment jurisprudence has been inconsistent with respect to the assessment of the host state’s environmental regulation under the FET clause in investment treaties To cure this legal uncertainty, this article proposes a deferential proportionality analysis to assess the host state’s environmental measure under the FET standard Specifically, first, the measure adopted by the State or government agency must serve a legitimate government purpose and be generally suitable to achieve this purpose (suitability) Second, there are no other less intrusive means with regard to the right or interest affected that are equally able to achieve the stated goal (necessity) Lastly, a balance between the effects of the state measure on the affected right or interests and the importance of the government purpose must be ensured (proportionality stricto sensu) Further, deference to the regulatory power of states must also be given in every step of the analysis when assessing states’ environmental measures Be that as it may, this proposal is not flawless and in the end, it is the text of the treaty itself that should be focused on as it indicates the origin intent and has a binding effect on the parties For Vietnam, Vietnam’s IIA drafters should follow the FET formulation in the CPTPP as well as incorporate environmental concerns into IIAs in a more efficient and valuable manner so that such an inherent right to regulate of the state does not become illusory In addition, to avoid arbitral proceedings initiated by foreign 77 investors, state’s environmental measures must be adopted with transparency and due process, and state’s environmental policies must be reviewed to contain more domestic substantive regulations governing sustainable development All in all, participating in IIAs generates both opportunities and challenges for states In order to obtain a balance towards states’ and investors’ interests in IIL, it will requires a lot of time and efforts from relevant parties but the outcome is totally deserving This thesis marks a small step in the direction of a more logical and transparent strategy for achieving this objective 78 BIBLIOGRAPHY A LEGAL DOCUMENTS AND INTERNATIONAL TREATIES ❖ International treaties Agreement between the Slovak Republic and the Islamic Republic of Iran for the Promotion and Reciprocal Protection of Investments, signed 19 January 2016, (entered into force 30 August 2017) ASEAN Comprehensive Investment Agreement, signed 26 February 2009, (entered into force 24 February 2012) Australia–Chile Free Trade Agreement, signed 30 July 2008, (entered into force 2009) Belgium-Luxembourg Economic Union (BLEU) - Mauritius BIT, signed 30 November 2005, (entered into force 16 January 2010) Belgium-Luxembourg Economic Union (BLEU) - Tajikistan BIT, signed 12 February 2009 China-Colombia BIT, signed 22 November 2008, (entered into force 02 July 2013) Colombia - United Kingdom BIT, signed 17 March 2010, entered into force 10 October 2014) Comprehensive and Progressive Agreement for Trans-Pacific Partnership, signed March 2018, (entered into force 2018) Croatia - Oman BIT, signed 04 May 2004 10 General Agreement on Tariffs and Trade 1994 11 Investment Protection Agreement between the European Union and the Socialist Republic of Vietnam, signed 30 June 2019, (not yet in force) 12 Regional Comprehensive Economic Partnership, ASEAN- Australia–China–Japan– Korea (Republic)–New Zealand, signed 15 November 2020 (entered into force 01 January 2022) 13 Vienna Convention on the Law of Treaties, signed 23 May 1969, (entered into force 27 January 1980) ❖ Legal documents 14 Decision No 432/QD-TTg of the Prime Minister on 12 April 2012 regarding the approval of sustainable development strategy of Vietnam in the period 2011-2022 15 Resolution No 36-NQ/TW of the Party Central Committee (12th tenure) on 22 October 2018 regarding the strategy for the sustainable development of Viet Nam's marine economy by 2030, with a vision to 2045 B MATERIALS ❖ Vietnamese materials 16 Ngo Nguyen Thao Vy, “Đánh giá quy định bảo vệ môi trường Hiệp định đối tác tồn diện tiến xun thái bình dương (CPTPP) – Lưu ý cho Việt Nam với tư cách quốc gia tiếp nhận đầu tư” (An assessment of environmental protection provisions in The Comprehensive and Progressive Agreement for Transpacific Partnership (CPTPP) - Recommendations for Vietnam from the perspective of a host state), Vietnamese Journal of Legal Science, 2019, Volume 17 Ngo Nguyen Thao Vy, Quy định quyền bảo vệ môi trường nhà nước tiếp nhận đầu tư khuôn khổ hiệp định đầu tư quốc tế - Kiến nghị cho Việt Nam (Regulations on environmental protection rights of the host state in international investment treaties - Recommendations for Vietnam), Ho Chi Minh City University of Law, 2018 18 Nguyen Ngoc Mai Thy, Vấn đề bảo vệ lợi ích cơng cộng giải tranh chấp quốc gia nhà đầu tư nước hiệp định đầu tư quốc tế - Kinh nghiệm cho Việt Nam (The protection of public interest when resolving disputes between the host states and foreign investors - Recommendations for Vietnam), Ho Chi Minh City University of Law, 2017 19 Nguyen Thi Lan Huong, “Liên hệ tiêu chuẩn “đối xử công thỏa đáng” với mục tiêu bảo vệ môi trường CPTPP – Một số đề xuất cho Việt Nam” (The relationship between “Fair and Equitable” and environmental purpose in CPTPP – Recommendations for Vietnam), Vietnamese Journal of Legal Science, 2019, Volume 06 20 Tran Viet Dung and Nguyen Ngoc Mai Thy, "Lợi ích cơng cộng" luật đầu tư quốc tế - thực tiễn giải tranh chấp quốc tế số đề xuất cho Việt Nam (“Public interest” in international investment law - international arbitral practice and suggestions for Vietnam), Vietnamese Journal of Legal Sciences, 2019, 01(122) English materials 21 Abdulkadir Gỹlỗỹr, The Necessity, Public Interest, and Proportionality in International Investment Law: A Comparative Analysis”, University of Baltimore Journal of International Law, Volume 6, Issue 22 Alexander J Bělohlávek, “Public Policy and Public Interest in International Law and EU Law”, Czech Yearbook of International Law, Juris Publishing, Inc., 2012 23 Alison Giest, “Interpreting Public Interest Provisions in International Investment Treaties”, Chicago Journal of International Law, 2017, Volume 18, Number 24 Andreas Kulick, Global Public Interest in International Investment Law, Cambridge University Press, 2012 25 August Reinisch and Christoph Schreuer, International Protection of Investments: The Substantive Standards, Cambridge University Press, 2020 26 Ben Mostafa, “The Sole Effects Doctrine, Police Powers and Indirect Expropriation under International Law”, Australian International Law Journal, 2008, Volume 15 27 Benedict Kingsbury and Stephan Schill, “Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law”, Public law & legal theory research paper series, New York University School of Law, 2009 28 Benedict Kingsbury and Stephan W Schill, Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality, in International Investment Law and Comparative Public Law, Oxford University Press, 2011 29 Bryan A Garner et al, Black’s law Dictionary, 9th edition, West Publishing Co., 2004 30 Camille Martini, “Balancing Investors' Rights with Environmental Protection in International Investment Arbitration: An Assessment of Recent Trends in Investment Treaty Drafting”, International Lawyer, 2017, Volume 50, No 31 Caroline Henckels, Proportionality and the Standard of Review in Fair and Equitable Treatment Claims: Balancing stability and consistency with the public interest, Third biennial global conference, The Society of International Economic Law, 2012 32 Dávid Rédli, Limitations to States’ Regulatory Power in International Investment Arbitration Resulting from Standards of Protection, with a Focus on Fair and Equitable Treatment Standard, Masasryk University, 2016 33 Federico Ortino, “The Obligation of Regulatory Stability in the Fair and Equitable Treatment Standard: How Far Have We Come?”, Journal of International Economic Law, 2018 34 Gebhard Bücheler, Proportionality in Investor-State Arbitration, Oxford University Press, 2015 35 John Beechey and Antony Crockett, New Generation of Bilateral Investment Treaties: Consensus or Divergence? in Contemporary Issues in International Arbitration and Mediation, Matinus Nijhoff Publishers, 2008 36 J Roman Picherack, “The Expanding Scope of the Fair and Equitable Treatment Standard: Have Recent Tribunals Gone Too Far?”, The Journal of World Investment and Trade, 2008 37 Kathryn Gordon, Joachim Pohl, “Environmental Concerns in International Investment Agreements: A Survey”, OECD Working Papers on International Investment, OECD Publishing, 2011 38 Le Thi Ngoc Ha, Vietnam’s International Investment Agreements: Various Substantive Compatibility Thresholds For Legislative Measures, La Trobe University, Australia, 2021 39 Margaret Clare Ryan, “Glamis Gold, ltd v The United States and the fair and equitable treatment standard”, McGill Law Journal, 2011, Volume 56:4 40 Michael Carfagninip, “Too Low a Threshold: Bilcon v Canada and the International Minimum Standard of Treatment”, The Canadian Yearbook of International Law, 2015 41 Mohamed Aboubakr and Abdullah Alhabeeb Almahjoub, “The Balance between the Public Interest and Investor Protection”, Kilaw Journal, 2019, Volume 7, Issue 4, Ser No 28 42 Nathalie Bernasconi et al, International Investment Law and Sustainable Development: Key cases from 2000–2010, IISD, 2011 43 OECD, Fair and Equitable Treatment Standard in International Investment Law, OECD Working Papers on International Investment, 2004, 2004/03 44 OECD, OECD Investment Policy Review: Vietnam 2018, OECD Publishing, Paris, 2018 45 Prabhash Ranjan, “Using the Public Law Concept of Proportionality to Balance Investment Protection with Regulation in International Investment Law: A Critical Reappraisal”, Cambridge Journal of International and Comparative Law, 2014 46 Qinglin Zhang, On Public Interest in International Investment Agreements, Law School of Wuhan University, 2013 47 Roland Klager, Fair and Equitable Treatment in International Investment Law, Cambridge University Press, 2011 48 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law, Oxford University Press, 2012 49 Rudolf Dolzer, Fair and Equitable Treatment: Today’s Contours, Santa Clara Journal of International Law, 2013, Volume 12 50 Satwik Shekhar, ‘Regulatory chill’: Taking right to regulate for a spin, Centre for WTO Studies, 2016 51 Saverio Di Benedetto, International Investment Law and The Environment, Elgar International Investment Law, 2013 52 Stefanie Schacherer, International Investment Law and Sustainable Development: Key cases from the 2010s, IISD, 2018 53 Stephan W Schill, “Glamis Gold, Ltd v United States”, The American Journal of International Law, 2010, Vol 104, No 54 Suzanne A Spears, “The quest for policy space in a new generation of international investment agreements”, Journal of International Economic Law, 2010, Vol 13 No 55 Tarcisio Gazzini, Bilateral Investment Treaties and Sustainable Development, The Journal of World Investment & Trade, 2014, No 15 56 Tarcisio Gazzini, Interpretation of International Investment Treaties, Bloomsbury Publishing, 2016 57 UNCTAD, Fair and equitable treatment - A sequel, Series on Issues in International Investment Agreements II, 2012 58 UNCTAD, Investment policy framework for sustainable development, 2015 59 UNCTAD, Investor–state dispute settlement and impact on investment rulemaking, 2007 60 Yannick Radi, Rules and Practices of International Investment Law and Arbitration, Cambridge University Press, 2020 61 Ying Zhu, “Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development”, Natural Resources Journal, 2018, Volume 58 ❖ Internet materials 62 Do Thi Thu, “FDI and the issue of socio-economic development in Vietnam” (Đầu tư trực tiếp nước vấn đề phát triển kinh tế - xã hội Việt Nam), National Institute for Finance, 6/2021, https://mof.gov.vn/webcenter/portal/vclvcstc/pages_r/l/chi-tiettin?dDocName=MOFUCM205169 (last accessed 21/06/2022) 63 Inga Martinkute, “Right to Regulate in the Public Interest: Treaty Practice”, Jus Mundi, https://jusmundi.com/en/document/wiki/en-right-to-regulate-in-the-publicinterest (last accessed 25/5/2022) 64 Investment Agreements Navigator, Investment Policy Hub, https://investmentpolicy.unctad.org/international-investment agreements/countries/229/viet-nam (last accessed 26/6/2022) 65 Lise Johnson and Oleksandr Volkov, “State Liability for Regulatory Change: How International Investment Rules are Overriding Domestic Law”, Investment Treaty News, https://www.iisd.org/itn/en/2014/01/06/state-liability-for-regulatory-changehow-international-investment-rules-are-overriding-domestic-law/#_ftn2 (last accessed 03/6/2022) 66 Magali Garin Respaut, “Environmental Issues in ISDS”, Jus Mundi, 67 https://jusmundi.com/en/document/wiki/en-environmental-issues-in-isds (last accessed 23/6/2022) 68 Riccardo Loschi and Fakhruddin Valika, “Public Interest”, Jus Mundi, https://jusmundi.com/en/document/wiki/en-public-interest 27/5/2022) ❖ Cases (last accessed 69 ADF Group Inc v United States of America, ICSID Case No ARB (AF)/00/1, Award, January 2003 70 Antoine Biloune and Marine Drive Complex Ltd v Ghana Investments Centre and the Government of Ghana, Ad hoc Arbitration, Award on Jurisdiction and Liability, 27 October 1989 71 Bayindir Insaat Turizm Ticaret Ve Sanayi A.S v Islamic Republic of Pakistan (I), ICSID Case No ARB/03/29, Decision on Jurisdiction, 14 November 2005 72 Bilcon of Delaware et al v Government of Canada, PCA Case No 2009-04, Award on Jurisdiction and Liability, 17 March 2015 73 Bilcon of Delaware et al v Government of Canada, PCA Case No 2009-04, Dissenting Opinion of Professor Donald McRae 74 Chemtura Corporation v Government of Canada, UNCITRAL, Award, August 2010 75 CMS Gas Transmission Co v Republic of Argentina, ICSID Case No ARB/01/8, Award, 12 May 2005 76 Electronica Sicula S.p.A (ELSI), U.S v Italy, ICJ, Judgement, 20 July 1989 77 Eli Lilly and Company v The Government of Canada, UNCITRAL, ICSID Case No UNCT/14/2, Notice of Arbitration, 12 September 2013 78 Eskosol S.p.A in liquidazione v Italian Republic, ICSID Case No ARB/15/50, Award, September 2020 79 Glamis Gold, Ltd v The United States of America, UNCITRAL, Award, June 2009 80 Joseph Charles Lemire v Ukraine, ICSID Case No ARB(AF)/98/1, Decision on Jurisdiction and Liability, 14 January 2010 81 L F H Neer and Pauline Neer (U.S.A.) v United Mexican States, Decision, 15 October 1926 82 LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc v Argentine Republic, ICSID Case No ARB/02/1, Award, 25 July 2007 83 Marvin Roy Feldman Karpa v United Mexican States, ICSID Case No ARB(AF)/99/1, Award, 16 December 2002 84 Merrill & Ring Forestry L.P v The Government of Canada, ICSID Case No UNCT/07/1, Award, 31 March 2010 85 Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award, 11 October 2022 86 MTD Equity Sdn Bhd and MTD Chile S.A v Republic of Chile, ICSID Case No ARB/01/7, Award, 25 May 2004 87 Occidental Petroleum Corporation and Occidental Exploration and Production Company v Republic of Ecuador (II), ICSID Case No ARB/06/11, Award, October 2012 88 Parkerings-Compagniet AS v Republic of Lithuania, ICSID Case No ARB/05/8, Award, 11 September 2007 89 Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24, Decision on Jurisdiction, February 2005 90 Saluka Investments B.V v The Czech Republic, UNCITRAL, Partial Award, 17 March 2006 91 S.D Myers, Inc v Government of Canada, UNCITRAL, Partial Award, 13 November 2000 92 SunReserve Luxco Holdings SRL v Italy, SCC Case No 132/2016, Final Award, 25 March 2020 93 Tecnicas Medioambientales Tecmed S.A v United Mexican States, ICSID Case No ARB(AF)/00/2, Award, 29 May 2003 ... 1.1.1 Historical origin and meaning of fair and equitable treatment standard 10 1.1.2 Formulations and interpretation of fair and equitable treatment standard in international investment treaties... PROTECTION IN INTERNATIONAL INVESTMENT ARBITRATION AND RECOMMENDATIONS FOR VIETNAM 37 2.1 Fair and equitable treatment standard standard and environmental protection in international investment. .. ? ?Balancing fair and equitable treatment standard and environmental protection in international investment law? ?? aims to analyze the FET standard, the environmental protection rights of states and