Proportionality principle in context of indirect expropriation under the european union – vietnam free trade agreement

MINISTRY OF EDUCATION AND TRAINING -*** -HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS LE NGOC BAO TRANG PROPORTIONALITY PRINCIPLE IN CONTEXT OF INDIRECT EXPROPRIATION UNDER THE EUROPEAN UNION – VIETNAM FREE TRADE AGREEMENT THESIS in partial fulfilment of the BACHELOR OF LAWS Faculty: International Law 2013 - 2017 HO CHI MINH CITY, 2017 MINISTRY OF EDUCATION AND TRAINING -*** -HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS LE NGOC BAO TRANG PROPORTIONALITY PRINCIPLE IN CONTEXT OF INDIRECT EXPROPRIATION UNDER THE EUROPEAN UNION – VIETNAM FREE TRADE AGREEMENT THESIS in partial fulfilment of the BACHELOR OF LAWS Faculty: International Law 2013 - 2017 Author Class Student Code Supervisor : : : : LE NGOC BAO TRANG 44-CLC38 1353801011251 Assoc Prof Dr TRAN THI THUY DUONG HO CHI MINH CITY, 2017 STATEMENT OF GUARANTEE I, Le Ngoc Bao Trang, hereby declare that the thesis “Proportionality Principle in context of Indirect Expropriation under the European Union – Vietnam Free Trade Agreement” is my own study under scientific supervision of Assoc Prof Dr Tran Thi Thuy Duong To the best of my knowledge, it contains no material previously published or written by another person, nor material which, to a substantial extent, has been excepted for the award of any other degree or diploma at any educational institution, except where due acknowledgment is made in the thesis I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party Ho Chi Minh City, July 2017 Le Ngoc Bao Trang This thesis is for Mom, Dad and Ai TABLE OF CONTENTS LIST OF ABBREVIATIONS INTRODUCTION .2 CHAPTER I.DOCTRINES GOVERNING INDIRECT EXPROPRIATION UNDER INTERNATIONAL LAW .11 1.1 The sole effect doctrine 12 1.1.1 Backgrounds of the sole effect doctrine .12 1.1.2 Comments on the sole effect doctrine 13 1.2 The police power doctrine 14 1.2.1 Backgrounds of the police power doctrine 14 1.2.2 Comments on the police power doctrine .16 1.3 The principle of proportionality (the mitigated police power doctrine) 17 1.3.1 Backgrounds of the proportionality principle .17 1.3.2 Comments on the proportionality principle 20 CHAPTER II.THE PROPORTIONALITY PRINCIPLE OF INDIRECT EXPROPRIATION UNDER CONTEXTS OF VIETNAM AND THE EU WITH DUE REGARD TO THE VCLT .23 2.1 Interpretation of the proportionality principle of indirect expropriation under context of Vietnam .24 2.2 Interpretation of the proportionality principle of indirect expropriation under context of the EU 27 2.2.1 The principle of suitability 27 2.2.2 The principle of necessity 29 2.2.3 The principle of proportionality stricto sensu .32 CHAPTER III.INTERPRETATION OF THE PROPORTIONALITY PRINCIPLE IN CONTEXT OF INDIRECT EXPROPRIATION UNDER THE EVFTA 35 3.1 Provisions of indirect expropriation under the EVFTA 35 3.2 Interpretation of the proportionality principle under the EVFTA in three sub-principles 38 3.2.1 The principle of suitability 38 3.2.2 The principle of necessity 40 3.2.3 The principle of proportionality stricto sensu .42 CONCLUSION 47 BIBLIOGRAPHY i LIST OF ABBREVIATIONS BIT Bilateral Investment Treaty ECJ European Court of Justice ECtHR European Court of Human Rights EU European Union EVFTA European Union – Vietnam Free Trade Agreement FTA Free Trade Agreement ICSID International Centre for Settlement of Investment Disputes Law on Compulsory Law on Compulsory Purchase and Requisition of Purchase and Property No 15/2008/QH12 dated June 2008 Requisition of Property Law on Enterprises Law on Enterprises No 68/2014/QH13 dated 26 November 2014 Law on Investment Law on Investment No 67/2014/QH13 dated 26 November 2014 Law on Treaties Law on Treaties No 108/2016/QH13 dated April 2016 NAFTA North American Free Trade Agreement p./pp page/pages para./paras paragraph/paragraphs VCLT Vienna Convention on the Law of Treaties 1969 WTO World Trade Organization INTRODUCTION Thesis rationale On December 2015, EU and Vietnam finalized talks for the EVFTA, marking the end of the negotiating process In early 2018, the EVFTA will be incorporated into Vietnamese laws and it shall prevail Vietnam’s domestic laws on indirect expropriation in some disputes between the EU and Vietnam in front of the EVFTA Tribunal Correspondingly, any preparation and research on the EVFTA is absolutely crucial As a result of the EVFTA, Vietnam is going to welcome many potential investors from the EU and making many investments into EU After all, Vietnam, as the State receiving investment from EU investors, will bear the heavy burden to not only protect rights of the EU investors but also manage domestic activities properly Vietnamese investors, on the other hand, face the risk of expropriation (both direct and indirect expropriations) of their project investments In recent years, there has been a marked increase in the number of investors that have sought compensation from States to have expropriated their projects In fact, Vietnam has become the Respondent of many investment disputes relating to expropriation with the compensation claimed by the claimant amounting to millions of dollars namely cases Trinh Vinh Binh and Binh Chau Joint Stock Company v Socialist Republic of Vietnam, Michael McKenzie v Socialist Republic of Vietnam and Dialasie SAS v Socialist Republic of Vietnam,… Indeed, expropriation was the first treatment standard to raise serious concerns in international investment law due to its high amount of compensation Besides, forbidding expropriation may limit host States’ right to regulate in pursuit of legitimate non-investment policy objectives With finalisation of the EVFTA, there increases higher probability that Vietnam is challenged before the Tribunal for its carrying out State measure as expropriation Modern FTAs like the EVFTA apply the principle proportionality to the constitution of indirect expropriation and to balance the investors’ interest and State sovereignty in its best effort The principle of proportionality is accordingly considered as a key to the dilemma of indirect expropriation Therefore, the thesis titled “Proportionality Principle in context of Indirect Expropriation under the European Union – Vietnam Free Trade Agreement” is presented as a groundwork for preparing the incorporation of the EVFTA into Vietnamese laws Literature review On international level, there are many studies concerning the principle of proportionality in context of indirect expropriation However, the situation in Vietnam is different The principle is unfamiliar to Vietnamese lawmakers and executors Moreover, the EVFTA has been finalized for merely two years so there hasn’t been many research carried out specifically for this agreement and its proportionality principle in context of indirect expropriation a In Vietnamese area In Vietnam, Trường Đại học Luật thành phố Hồ Chí Minh (2012), Giáo trình Luật Thương mại Quốc tế - Phần I, Nhà xuất Hồng Đức is the good ground for me to conduct deeper research on principles of international, especially the principle of proportionality The book embraces the principle of proportionality as a principle in WTO and in international investment law generally Moreover, Xavier Groussot and Nguyễn Thanh Tú, in 2006, published an article in Tạp chí khoa học pháp lý, Vol 36 named “Nguyên tắc cân – hợp lý tự hóa thương mại” which proposed Vietnamese government to seriously consider the proportionality principle to avoid conflict between Vietnamese laws and further treaties as well as to use this principle to protect itself The article concisely illustrates criteria for the proportionality principle in the EU law and WTO law Regarding the proportionality principle specializing in indirect expropriation, the two professors publishing research on expropriation are Assoc Prof Dr Tran Thi Thuy Duong and Assoc Prof Dr Tran Viet Dung Assoc Prof Dr Tran Thi Thuy Duong, in 2015, published an article named “Điều khoản tước quyền sở hữu nhà đầu tư hiệp định đầu tư song phương”, Tạp chí Nghiên cứu Lập pháp, Vol 02 This article provides expropriation clauses in BITs and briefly poses questions on how a regulatory measure of State constitutes an expropriatory act Assoc Prof Dr Tran Viet Dung has published three articles surrounding expropriation, namely Trần Việt Dũng (2014), “Trách nhiệm bồi thường hành vi truất hữu tài sản nhà đầu tư nước phương pháp định giá tài sản để bồi thường pháp luật đầu tư quốc tế”, Tạp chí Khoa học pháp lý, Vol 05; Trần Việt Dũng (2015), “Truất hữu, bảo đảm đầu tư trách nhiệm bồi thường truất hữu tài sản nhà đầu tư nước ngồi”, Tạp chí Nghiên cứu Lập pháp, Vol 07 and Trần Việt Dũng (2016), “Truất hữu tài sản nhà đầu tư nước trường hợp làm ô nhiễm môi trường”, Tạp chí Khoa học pháp lý, Vol 05 These articles summarize definition and interpretation of expropriation, especially in protection of public policy objective of the State, and give a concise view on the State’s liability of compensation in case expropriation occurs These articles of the two esteemed professors are good grounds for me to carry out this thesis Moreover, in the welcoming of the EVFTA, the EU – Vietnam Multilateral Trade Project, Ha Noi Law University and Vietnam International Arbitration Centre hosted many seminars with participation of the most highly qualified publicists of various nations I also rely on these teachings as good sources of reference A notable thesis for consideration regarding this principle is Trương Thị Thuỳ Dung (2015), “Nguyên tắc cân hợp lý: Phân tích từ góc độ vụ tranh chấp khuôn khổ WTO”, Bachelor Thesis, Ho Chi Minh City University of Law This thesis is directed for bringing about a modern aspect of the proportionality principle and enlightening its criteria in WTO Regarding writings about the EVFTA, “Report Review Vietnam’s Legal Framework against Commitments under the European Union – Vietnam Free Trade Agreement (EVFTA) on Investment” of Vietnam Chamber of Commerce and The principle of proportionality in the EVFTA helps parties get more good faith before carrying out any measure The measure must be suitable, least restrictive and proportionate, aiming to protect legitimate public objective It is at best protecting State’s right of sovereignty and investor’s interests in case any legitimate public policy occurs One example is taken to describe the application of the proportionality principle as follows: An EU enterprise, after entering into an agreement with the Government of Vietnam, is issued with an Investment Registration Certificate and an Enterprise Registration Certificate to establish a foreign company, named X, in Vietnam Company X is registered to manufacture and distribute steel within Vietnam It has one factory locating in a coastal province of Vietnam The company then, in the manufacture process, caused a large explosion and leaked many waste into the environment It released a big amount of pollution into the air and the sea causing many deaths of fish People living around the factory are diagnosed with serious diseases like cancer Scientific research is conducted and determines waste from the factory as the primary cause of death of fishes and people’s serious diseases The Government of Vietnam contacts the director of Company X many times and orders it to take all appropriate measures to comply with the obligations under the agreement between the EU enterprise and the Government of Vietnam However, Company X does not anything to mitigate the pollution In this case, due to Company X’s abject incompetence and failure to remedy, the Government of Vietnam wants to take steps towards the explosion Many measures are considered at hand, namely (i) appointing a new director to the Company and directing mitigation of the explosion; (ii) withdrawing the Investment Registration Certificate and Enterprise Registration Certificate of Company X and mitigating the explosion; or (iii) sending management and operating teams to take over the premises of the factory in order to undertake the necessary mitigation works All of these measures are of expropriatory character 44 Before choosing one measure to conduct, the Government of Vietnam goes through the three-pronged test of the proportionality principle, namely the principle of suitability, the principle necessity and the principle of proportionality stricto sensu Consideration must be taken to determine, first, (i) whether the chosen measure aims at legitimate public objective provided in the EVFTA, (ii) whether the measure is the least restrictive measure to Company X, and (iii) whether the impact of the chosen measure is excessive or severe in light of the purpose (mitigating the pollution caused by the explosion) Discriminatory intention is also taken into account As can be seen above, in any cases, the measure taken by the State shall be considered thoroughly to not only retain the legitimate public objective of the State but also protect the interests of the investor at its best In summary, between EU and Vietnam in the EVFTA context, the assessment of whether a State measure is an indirect expropriation should be a process that takes into account the private rights of foreign investors as well as the sovereign rights of the host State The investor does have the right to protect its assets, but the State must retain the ability to protect the public interest of which it is guarantor within its territory.127 127 Nikièma, supra note 43 at 22 45 CONCLUSION FOR CHAPTER III The EVFTA clearly embodies the suitability, necessity and proportionality stricto sensu (overall, the principle of proportionality) via its language Regarding the principle of suitability, the EVFTA requires that any measure carried out by the EU or Vietnam must be designed to protect legitimate public policy objectives, namely the protection of society, the environment and public health, the integrity and stability of the financial system, the promotion of security and safety, and the promotion and protection of cultural diversity In the necessity test, although it is not expressed clearly in the EVFTA, the FTA implies that the measure should the least restrictive via its expectation that the measure is not “so severe in light of its purpose that it appears manifestly excessive.” Finally, the proportionality stricto sensu test demands that the impact of the measure must be proportionate in comparison with its purpose “Proportionate,” under the EVFTA, is antonym to “severe” and “manifestly excessive.” Further, the proportionality principle in the context of indirect expropriation under the EVFTA is not only a principle of conduct but also a principle of result To clarify, the principle of proportionality requires the measure to be taken nondiscriminatorily taking into account it as the least-restrictive measure and for legitimate policy objectives On the other hand, it is also a principle of result which requires the impacts caused by the measure are not so serious and excessive in comparison with the aim Correspondingly, the proportionality principle in context of indirect expropriation is adequately provided under the EVFTA 46 CONCLUSION The EVFTA is a newly concluded FTA including the proportionality principle in context of indirect expropriation Among the sole effect doctrine, the police power doctrine and the proportionality principle (the mitigated police power doctrine), the EVFTA decides the adopt the last to balance the interests of the State and the investor The principle of proportionality is divided into three subprinciples, namely the principle of suitability, the principle of necessity and the principle of proportionality stricto sensu: - The principle of suitability requires the measure to aim at legitimate policy objectives, namely the protection of society, the environment and public health, the integrity and stability of the financial system, the promotion of security and safety, and the promotion and protection of cultural diversity - The principle of necessity requires the measure to be the least restrictive measure - The principle of proportionality stricto sensu requires that the measure is a balancing between the measure’s objectives and adverse consequences on the affected investor’s interest The proportionality principle in the EVFTA is to balance the interests of the State and the investor Therefore, it can become a shielding tool (shield) and an attacking tool (sword) in Vietnam’s economic relationships with the EU Viet Nam should make use of this principle, provided that it is required to carefully adopt and implement measures in order to avoid possible disputes As a matter of fact, the EVFTA’s negotiating process has just ended successfully; therefore, research into the FTA is insufficient Moreover, it should be taken into account that the proportionality principle is not embodied in the expropriatory provisions of Vietnamese laws There exists a gap between provisions of indirect expropriation of Vietnamese laws and the EVFTA Therefore, to strengthen the “shield,” sharpen the “sword” and fill in the gap, I present some following suggestions: 47 Firstly, pending emergence of the EVFTA, it falls to arbitration tribunals to adapt case law to the current challenges of defining indirect expropriation, specifically the principle of proportionality At the primary step, Vietnam should start drafting legal documents to provide and incorporate factors that take into account the needs and public interests of the host State and a balance test before conducting an expropriatory measure.128 Secondly, Vietnam should coordinate with EU for a document giving further guidance to the proportionality principle in the context of indirect expropriation Thirdly, the Government of Vietnam can flexibly use the principle of proportionality not only to protect and justify its legal regulations, but also to challenge and defeat EU measures affecting legitimate interests of Vietnam.129 Vietnam must conduct more studies on the principle of proportionality as the principle is becoming very crucial in international investment law and especially the EVFTA Finally, in any case involving a dispute on indirect expropriation between EU investors and Vietnam as the claimant and the respondent respectively, the EVFTA shall prevail over the Law on Compulsory Purchase and Requisition, Law on Enterprises and Law on Investment of Vietnam Vietnam should anticipate the difference and help facilitate the consistency between its domestic law and international law in this field 128 Trần Việt Dũng (2015), “Truất hữu, bảo đảm đầu tư trách nhiệm bồi thường truất hữu tài sản nhà đầu tư nước ngoài”, Tạp chí N hiên cứu Lập pháp, Vol 07, p 56 129 Xavier Groussot and Nguyễn Thanh Tú (2006), “Nguyên tắc cân - hợp lý tự h a thương mại”, Tạp chí khoa học pháp lý, Vol 36, p 13 48 BIBLIOGRAPHY A LEGISLATIVE DOCUMENTS European Union – Vietnam Free Trade Agreement; First Protocol of the European Convention of Human Rights; Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens; Law on Compulsory Purchase and Requisition of Property No 15/2008/QH12 dated June 2008; Law on Enterprises No 68/2014/QH13 dated 26 November 2014; Law on Investment No 67/2014/QH13 dated 26 November 2014; Law on Treaties No 108/2016/QH13 dated April 2016; Model BIT of Canada; Model BIT of the United States; 10 Vienna Convention on the Law of Treaties 1969; B REFERENCES ARTICLES 11 Andrew Newcombe (2005), “The Boundaries of Regulatory Expropriation in International Law”, ICSID Review-Foreign Investment Law Journal, Vol 20; 12 Ben Mostafa (2008), “The Sole Effects Doctrine, Police Powers and Indirect Expropriation under International Law”, Australian International Law Journal, Vol 15; 13 Benedict Kingsbury and Stephan Schill (2009), “Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law”, New York University Public Law and Legal Theory Working Papers; 14 Bernhard Schlink (2012), Proportionality in Michel Rosenfeld and Andr s Saj– (2012), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press; i 15 Caroline Henckels (2012), “Proportionality and the Standard of Review in Fair and Equitable Treatment Claims: Balancing Stability and Consistency with the Public Interest”, Society of International Economic Law (SIEL), 3rd Biennial Global Conference; 16 En o Canni aro (2001), “The Role of Proportionality in the Law of International Countermeasures”, European Journal of International Law, Vol 12; 17 Eric Engle (2012), “The History of the General Principle of Proportionality: An Overview”, The Dartmouth Law Journal, Vol 01; 18 Eva Brems (2009), “Human Rights: Minimum and Maximum Perspectives”, Human Rights Law Review, Vol 09; 19 Georg Nolte (2010), “Thin or Thick? The Principle of Proportionality and International Humanitarian Law”, Law and Ethics of Human Rights, Vol 04; 20 Han Xiuli (2006), “On the Application of the Principle of Proportionality in ICSID Arbitration and Proposals to Government of the People's Republic of China”, James Cook University Law Review, Vol 13; 21 Helmut Aust, Alejandro Rodiles and Peter Staubach (2014), “Unity or Uniformity? Domestic Courts and Treaty Interpretation”, Leiden Journal of International Law, Vol 27; 22 Inaamul Haque and Ruxandra Burdescu (2004), “Monterrey Consensus on Financing for Development: Response Sought from International Economic Law”, Boston College International and Comparative Law Review, Vol 27; 23 International Law Commission (2006), “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, A/CN.4/L.682; 24 Irmgard Marboe (2006), “Compensation and Damages in International Law, The Limits of Fair Market Value”, The Journal of World Investment and Trade, Vol 07; 25 Jack Coe and Noah Rubins (2005), “Regulatory Expropriation and the Tecmed Case: Context and Contributions”, in Todd Weiler (2005), International ii Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, Cameron May; 26 Jan Jans (2000), “Proportionality Revisited”, Legal Issues of Economic Integration, Vol 27; 27 Jason Gudofsky (2000), “Shedding Light on Article 1110 of the North American Free Trade Agreement (NAFTA) Concerning Expropriations: An Environmental Case Study”, Northwestern Journal of International Law and Business, Vol 21; 28 John Her (1941), “Expropriation of Foreign Property”, American Journal of International Law, Vol 35; 29 Jürgen Schwar e (2003), “The Principle of Proportionality and the Principle of Impartiality in European Administrative Law”, Rivista Trimestrale di Diritto Pubblico; 30 Konrad von Moltke (2002), “Discrimination and Non-Discrimination in Foreign Direct Investment Mining Issues”, OECD Global Forum on International Investment Conference on Foreign Direct Investment and the Environment; 31 L Yves Fortier and Stephen Drymer (2004), “Indirect Expropriation in the Law of International Investment: I Know It When I See It, or Caveat Investor”, ICSID Review – Foreign Investment Law Journal, Vol 19; 32 L B Sohn et R R Baxter (1961), “Responsibility of State to injuries to Economics Interests of Aliens”, American Journal of International Law, Vol 55; 33 Loren o Zucca (2004), “Book review: A theory of Constitutional Rights”, International and Comparative Law Quarterly, Vol 53; 34 Mads Andenas and Stefan Zleptnig (2007), “Proportionality: WTO Law: in Comparative Perspective”, Texas International Law Journal, Vol 43; 35 Martin Wagner (1999), “International Investment, Expropriation and Environmental Protection”, Golden Gate University Law Review, Vol 29; iii 36 Mattias Kumm (2007), “Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement” in George Pavlakos (2007), Law, Rights and Discourse, Hart Publishing; 37 Meinhard Hilf and Sebastian Puth (2002), “The Principle of Proportionality on its Way into WTO/GATT Law”, in Armin Bogdandy, Petros Mavroidis and Yves Mény (2002), European Integration and International Co-ordination, Kluwer Law International; 38 Melissa Waters (2005), “Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law”, Georgetown Law Journal, Vol 93; 39 Michael Gruenberger (2006), “A Duty to Protect the Rights of Performers? Constitutional Foundations of An Intellectual Property Right”, Cardozo Arts and Entertainment Law Journal, Vol 24; 40 Robert Alexy (1992), “Individual Rights and Collective Goods” in Carlos Nino (1992), Rights, Dartmouth; 41 Rudolf Dol er (2002), “Indirect expropriations: New developments?”, New York University Environmental Law Journal, Vol 11; 42 Simon Baughen (2006), “Expropriation and Environmental Regulation: The Lessons of NAFTA Chapter Eleven”, Journal of Environmental Law, Vol 18; 43 Surya Subedi (2006), “The Challenge of Reconciling the Competing Principles within the Law of Foreign Investment with Special Reference to the Recent Trend in the Interpretation of the Term “Expropriation””, International Lawyer, Vol 40; 44 Su y Nikièma (2012), “Best Practices Indirect Expropriation”, The International Institute for Sustainable Development; 45 Thomas Waelde and Abba Kolo (2001), “Environmental Regulation, Investment Protection and ‘Regulatory Taking’ in International Law”, The International and Comparative Law Quarterly, Vol 50; iv 46 Trần Thị Thuỳ Dương (2015), “Điều khoản tước quyền sở hữu nhà đầu tư hiệp định đầu tư song phương”, Tạp chí Nghiên cứu Lập pháp, Vol 02; 47 Trần Việt Dũng (2014), “Trách nhiệm bồi thường hành vi truất hữu tài sản nhà đầu tư nước phương pháp định giá tài sản để bồi thường pháp luật đầu tư quốc tế”, Tạp chí Khoa học pháp lý, Vol 05; 48 Trần Việt Dũng (2015), “Truất hữu, bảo đảm đầu tư trách nhiệm bồi thường truất hữu tài sản nhà đầu tư nước ngồi”, Tạp chí Nghiên cứu Lập pháp, Vol 07; 49 Trần Việt Dũng (2016), “Truất hữu tài sản nhà đầu tư nước ngồi trường hợp làm nhiễm mơi trường”, Tạp chí Khoa học pháp lý, Vol 05; 50 Ursula Kriebaum (2007), “Regulatory Takings: Balancing the Interests of the Investor and the State”, The Journal of World Investment and Trade, Vol 05; 51 Veijo Heisakanen (2007), “The Doctrine of Indirect Expropriation in Light of the Practice of the Iran-United States Claims Tribunal”, The Journal of World Investment and Trade, Vol 08; 52 Vietnam Chamber of Commerce and Industry Centre for WTO and Economic Integration (2017), “Report Review Vietnam’s Legal Framework against Commitments under the European Union – Vietnam Free Trade Agreement (EVFTA) on Investment”; 53 Wolf Sauter (2013), “Proportionality in EU law: A balancing act?”, TILEC Discussion Paper; 54 Xavier Groussot and Nguyễn Thanh Tú (2006), “Nguyên tắc cân - hợp lý tự hóa thương mại”, Tạp chí khoa học pháp lý, Vol 36; 55 Zhang Qinglin (2013), “On Public Interest in International Investment Agreements”, Law School of Wuhan University; BOOKS 56 Albert Graells (2015), Public Procurement and the EU Competition Rules, Bloomsbury Publishing; v 57 Andrew Mitchell (2008), Legal Principles in WTO Disputes, Cambridge University Press, 1st ed.; 58 Anne Meuwese (2008), Impact Assessment in EU Lawmaking, Kluwer Law International; 59 B A Wortley (1959), Expropriation in Public International Law, Cambridge University Press; 60 Benedikt Pirker (2013), Proportionality analysis and models of judicial review, Europa Law Publishing; 61 Bryan Garner (2014), Black’ Law Dictiona y, Thomson West, 10th ed.; 62 Cynthia Wallace (2002), The Multinational Enterprise and Legal Control: Host State Sovereignty in an Era of Economic Globalization, Martinus Nijhoff Publishers; 63 Ekkehart Stein and Götz Frank (2004), Staatsrecht, Mohr Siebeck Lehrbuch (Verlag), 19th ed.; 64 Jonas Christoffersen (2009), Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights, Brill; 65 Jukka Snell (2002), Goods and Services in EC Law: A Study of The Relationship between The Freedoms, Oxford University Press; 66 Jurgen Schwarze (2006), European Administrative Law, Sweet and Maxwell; 67 Lukasz Gruszczynski and Wouter Werner (2014), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation, Oxford University Press; 68 M Sornarajah (2010), The International Law on Foreign Investment, Cambridge University Press, 3rd ed.; 69 Mark Villiger (2009), Commentary on the 1969 Vienna Convention on the Law of Treaties, Brill; 70 Nicholas Emiliou (1996), The Principle of Proportionality in European Law: A Comparative Study, Kluwer Law International; 71 Paul Graig (2006), EU Administrative Law, Oxford University Press; vi 72 Richard Gardiner (2017), Treaty Interpretation, Oxford University Press, 2nd ed.; 73 Sergio Carrera (2009), In Search of the Perfect Citizen?: The Intersection Between Integration, Immigration, and Nationality in the EU, Brill; 74 Stephan Schill (2010), International Investment Law and Comparative Public Law, Oxford University Press; 75 Takis Tridimas (1999), The General Principles of EC Law, Oxford University Press; 76 Tor-Inge Harbo (2015), The Function of Proportionality Analysis in European Law, Hotei Publishing; 77 Trường Đại học Luật thành phố Hồ Chí Minh (2012), Giáo trình Luật Thương mại Quốc tế - Phần I, Nhà xuất Hồng Đức; 78 Wenhua Shan, Penelope Simons and Dalvinder Singh (2008), Redefining Sovereignty in International Economic Law, Bloomsbury Publishing; THESIS 79 Isabel Andersen (2014), “The Principle of Proportionality: A comparative study of its application in WTO law and EU law”, Master Thesis, University of Oslo; 80 Javier Benavides (2011), “The expropriation clause and the tension between foreign investment and the public interest - An analysis of recent international investment arbitration case law”, Master Thesis, Heidelberg Univ ita T- Heidelberg Universidad De Chile; 81 Jeremy Brown (2012), “The Doctrine of Proportionality: A Comparative Analysis of the Proportionality Principle Applied to Free Speech Cases in Canada, South Africa and the European Convention on Human Right and Freedoms”, Master Thesis, Central European University; 82 Theodora Kioseoglou (2014), “Operationali ing the proportionality principle in investment treaty arbitration”, Master Thesis, International Hellenic University; vii 83 Trương Thị Thuỳ Dung (2015), “Nguyên tắc cân hợp lý: Phân tích từ góc độ vụ tranh chấp khuôn khổ WTO”, Bachelor Thesis, Ho Chi Minh City University of Law; C ARBITRAL DECISIONS 84 Archer Daniels Midland Company v The United Mexican State, Award, ICSID Case No ARB(AF)/04/05, 21 November 2007; 85 Azurix Corp v The Argentine Republic, Award, ICSID Case No ARB/01/12, 14 July 2006; 86 BG Group Plc v The Republic of Argentina, Final Award, UNCITRAL, 24 December 2007; 87 Biloune and Marine Drive Complex Ltd v Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability, UNCITRAL, 27 October 1989; 88 Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, Award, ICSID Case No ARB/05/22, 24 July 2008; 89 CMS Gas Transmission Company v the Republic of Argentina, Award, ICSID Case No ARB/01/8, 12 May 2005; 90 Compañia del Desarrollo de Santa Elena S.A v Republic of Costa Rica, ICSID Case No ARB/96/1, 17 February 2000; 91 Emmanuel Too v United States of America, Award, Iran-United States Claims Tribunal, Case No 460-880-2, 29 December 1989; 92 Fi man’ Fun In u anc Company Th nit M xican Stat , Partial Award, ICSID Case No ARB(AF)/02/01, 17 July 2006; 93 LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc v Argentine Republic, Decision on Liability, ICSID Case No ARB/02/1, October 2006; 94 Metalclad Corporation v The United Mexican States, Award, ICSID Case No ARB(AF)/97/1, 30 August 2000; viii 95 Methanex Corporation v United States of America, Final Award on Jurisdiction and Merits, UNCITRAL, August 2005; 96 Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador, Award, ICSID Case No ARB/06/11, October 2012; 97 Patrick Mitchell v The Democratic Republic of Congo, Decision on the Application for Annulment of the Award, ICSID Case No ARB/99/7, November 2006; 98 Pope and Talbot Inc v The Government of Canada, Interim Award, UNCITRAL, 26 June 2000; 99 Saluka Investments B.V v The Czech Republic, Partial Award, UNCITRAL, 17 March 2006; 100 Sedco, Inc et al v National Iranian Oil Co., et al., Award, Iran-United States Claims Tribunal, Case No ITL 55-129-3, 28 October 1985; 101 Técnicas Medioambientales Tecmed, S.A v The United Mexican States, Award, ICSID Case No ARB (AF)/00/2, 29 May 2003; 102 Tippetts, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers of Iran, et al., Award, Iran-US Claims Tribunal, Case No 141-7-2, 29 June 1984; 103 Tokio Tok l s v Ukraine, Award, ICSID Case No ARB/02/18, 26 July 2007; D CASES OF THE EUROPEAN COURTS 104 Case 104/75, Adriaan de Peijper, 1976 European Court Report; 105 Case 302/86, Comm’n D nma k, 1988 European Court Report; 106 Case C-331/88, Fedesa, 1990 European Court Report; 107 Case C-368/95, Familiapress, 1997 ECR; 108 Case T-13/99, Pfizer, 2002 European Court Report; E WEBSITES 109 http://investmentpolicyhub.unctad.org/IIA/; 110 http://investmentpolicyhub.unctad.org/ISDS/Details/168/; ix 111 http://investmentpolicyhub.unctad.org/ISDS/Details/382/; 112 http://investmentpolicyhub.unctad.org/ISDS/Details/423/; 113 http://isl.vass.gov.vn/UserControls/News/pFormPrint.aspx?UrlListProcess=/ noidung/tintuc/Lists/TinTucHoiNghiHoiThaoandListId=771497de-bb14-47c3-adf398ac4b9436e8andSiteId=37596567-bc8d-47de-878da9d5b872324bandItemID=515andSiteRootID=3cc397b5-80c0-4a31-b8c8654246ead437/; 114 http://tcnn.vn/Plus.aspx/vi/News/125/0/1010067/0/18960/Hien_phap_hoa_n guyen_tac_gioi_han_quyen_con_nguoi_Can_nhung_chua_du/; 115 http://wtocenter.vn/; 116 https://www.italaw.com/ x