MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM

MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY _ MASTER THESIS MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law DOAN VIET THANG Hanoi – 2019 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY _ MASTER THESIS MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law Code: 8310106 Full name: Doan Viet Thang Supervisor: Assoc Prof Dr Nguyen Minh Hang Hanoi - 2019 REASSURANCE I hereby assure that this master thesis is exclusively made by myself and that all data and results stated in this master thesis are honest In addition, I hereby assure that all of the supports in the process of implementation cited in the master thesis have been specified its sources The author Doan Viet Thang ACKNOWLEDGEMENT First of all, I would like to express my deep gratitude and great appreciation to my supervisor Assoc Prof Dr Nguyen Minh Hang, for her exemplary guidance and valuable encouragement throughout the course of this thesis The support and guidance given by hers have been priceless I also take this opportunity to express a deep sense of gratitude to all the professors and lecturers of master program of International Trade policy and law for their valuable supports and guidance, which helped me in growing in knowledge and experience through various stages Furthermore, I would like to especially thank for the support, encouragement and assistance from my family, colleagues and friends during the time of this thesis th Hanoi, 28 Jun 2019 i TABLE OF CONTENTS TABLE OF CONTENTS i LIST OF ABBREVIATIONS iv LIST OF FIGURES vii SUMMARY OF THESIS RESEARCH RESULTS viii INTRODUCTION CHAPTER 1: BASIC THEORETICAL ISSUES ON INVESTOR - STATE DISPUTE 1.1 An overview of international investment and Investor - State dispute 1.1.1 Conception of international investment 1.1.1.1 Conception of investment 1.1.1.2 Conception of international investment 1.1.2 An overview of international investment dispute 10 1.1.2.1 Conception of international investment dispute 10 1.1.2.2 Classification of international investment disputes 10 1.1.3 Investor - State dispute (ISD) 11 1.1.3.1 Conception of Investor - State dispute 11 1.1.3.2 Features of Investor - State dispute 14 1.2 An overview of mechanism and measures to prevent international investment disputes 16 1.2.1 Concept of investor-State dispute prevention 16 1.2.2 Investor-States dispute prevention mechanisms 17 1.2.3 Investor-States dispute prevention measures 20 CHAPTER 2: MECHANISM AND MEASURES FOR PREVENTING INVESTOR – STATE DISPUTES - INTERNATIONAL EXPERIENCE 22 2.1 The situation of Investor - State disputes settlement in the world 22 2.1.1 The situation of Investor - State disputes settlement by the diplomatic protection method 22 2.1.2 The situation of Investor-State disputes settlement by the Courts’ mode 23 ii 2.1.3 The situation of Investor-State disputes settlement by the Arbitration method 24 2.1.4 The situation of Investor - State disputes settlement by the other methods 26 2.2 Mechanism and prevention measures in settling international investment disputes in some countries 28 2.2.1 Mechanism and prevention measures in settling international investment disputes in Jordan 28 2.2.2 Mechanism and prevention measures in settling international investment disputes in Colombia 29 2.2.3 Mechanism and prevention measures in settling international investment disputes in Korea 33 2.2.4 Mechanism and prevention measures in settling international investment disputes in Peru 37 CHAPTER 3: LESSONS FOR VIETNAM IN PREVENTING INVESTOR – STATE DISPUTES 44 3.1 The basis for proposing measures to prevent Investor - State disputes 44 3.1.1 Current situations of foreign investment in Vietnam 44 3.1.2 Situation of Investor - State disputes and Investor-State dispute settlement in Vietnam 46 3.1.2.1 Situation of Investor - State disputes in Vietnam .46 3.1.2.2 Situation of ISD settlement in Vietnam 47 3.1.3 Situation of Vietnamese on prevent Investor - State dispute 59 3.2 Lessons learn for Vietnam to prevent Investor-State disputes and applied solutions 61 3.2.1 Lessons for Vietnam to prevent Investor-State disputes 61 3.2.1.1 Focus on the warning mechanism and dispute prevention .61 3.2.1.2 Establish a specialized agency to represent the State in the prevention and resolution of ISD 62 iii 3.2.1.3 Complete methods of settling disputes with foreign investors in the country 65 3.2.1.4 Pay attention to negotiating and signing IIAs 66 3.2.2 Investor-State dispute prevention mechanism and measures for Vietnam 67 3.2.2.1 Mechanisms and measures to prevent international investment disputes remotely 67 3.2.2.2 Select and appraise the capacity of foreign investors and determine and prioritize investment sectors in accordance with the law to prevent disputes 74 3.2.2.3 Monitor closely the implementation of investment projects of foreign investors 75 3.2.2.4 Mechanisms and measures that block disagreements and conflicts develop into disputes 75 3.2.2.5 Ensure authority to negotiate and settle - budgetary authority 80 3.2.2.6 Institutional response: ombuds and mediation services 81 3.2.2.7 State-State cooperation in dispute prevention 82 CONCLUSION 84 LIST OF REFERENCES 86 iv LIST OF ABBREVIATIONS Abbreviation Description AAA American Arbitration Association ACIA ASEAN Comprehensive Investment Agreement AF Additional Facility ANDI Algeria's Agence National de Development des Investments APR Arbitration Procedures Rules ASEAN Association of Southeast Asian Nations BIT Bilateral investment treaty BOT Build-Operate-Transfer BT Build-Transfer BTA Bilateral Trade Agreement BTO Build-Transfer-Operate DRCAFTA Dominican Republic Central America Free Trade Agreement ECT Energy Charter Treaty FDI Foreign Direct Investment FI Foreign Investment FTA Free Trade Area GDP Gross Domestic Product ICC International Chamber of Commerce ICDR International Center for Dispute Resolution ICSID International Centre for Settlement of Investment Dispute IIA International investment agreements v ISD Investor-State Dispute ISDS Investor-State Dispute Settlement JCAA Japan Commercial Arbitration Association JIC Jordan Investment Commission JICA Japan International Cooperation Agency KOTRA Korea Trade-Investment Promotion Agency MOJ Ministry of Justice MoFA Ministry of Foreign Affairs MPI Ministry of Planning and Investment NAFTA North American Free Trade Agreement NHK-ITEC NHK Integrated Technology Inc ODA Official Development Assistance OECD Organization for Economic Cooperation and Development OFIO Office of the Foreign Investment Ombudsman OIO Office of the Foreign Investment Ombudsman OPIC Overseas Private Investment Corporation PCA Permanent Court of Arbitration PMU Project Management Unit SCC Stockholm Chamber of Commerce TPP Trans-Pacific Strategic Economic Partnership Agreement UCCI Urban-Civil Works Construction Investment Management Authority of Ho Chi Minh city UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development vi US United State USA United States of America USD United States dollar VIAC Vietnam International Arbitration Center VND Vietnam dong VTV Vietnam Television VUS.BTA Vietnam-United State Bilateral Trade Agreement WIPO World Intellectual Property Organization 77 pressure to classify and transmit information to agencies informed by the focal point agency Otherwise, because there is an address to receive and transmit information, transmitted information are not duplicated or fault due to asynchronous transmission and implementation of different agencies However, the focal point agency has to classify information so that it requires labor having general knowledge on investment law, IIAs and knowledge relating to ISDS b) Detect and early handle disagreements between state management agencies and foreign investors before these disagreements can become international investment disputes, which must be resolved at the judicial authorities in international or international arbitration This finding helps competent State agencies to arrange, negotiate and agree with foreign investors to handle in a reasonable and lawful manner, to resolve differences and avoid these differences developing into a dispute The initial disagreements and contradictions expressed outside are the fact that foreign investors directly meet or send complaints and reflect on questions related to their investment to competent State agencies Therefore, state agencies directly deal with investment-related affairs of foreign investors, both at the central and local levels, should comply with the provisions of Article and Article 10 of the Prime Minister's Decision No 04/2014 / QD-TTg of January 14, 2014, promulgating the Regulation on coordination in the settlement of international investment disputes as well as relevant law provisions In addition, through activities of monitoring and inspecting the implementation of investment law, foreign investment projects, settling complaints of foreign investors, State agencies promptly discover, inform and report to State agencies early in charge of state management of investment in the possibility of generating investment disputes from specific cases that they know to help these agencies take action for eliminating disputes which may arise from these disagreements 78 The management board of industrial parks, export processing zones and economic zones is an agency which is capable to early detect in their functions and tasks and can deal with disagreements and conflicts early Therefore, in their work, industrial park, export processing zone and economic zone management boards need to pay attention to the implementation of this task c) Definitely resolve disagreements in accordance with administrative complaints or consultation, negotiation and judicial procedures in the country to prevent disputes In order to prevent international investment disputes, when there are disagreements and conflicts related to the implementation and implementation of investment projects of foreign investors, the State agencies should make efforts to resolve the case in the procedure of administrative complaints or consultations and negotiations In cases, these procedures still fail to resolve the case, it is necessary to try to persuade the foreign investor to agree to bring the case to the Vietnamese judicial authorities This will prevent the claimants from participating in complicated, expensive procedures at international arbitration In order to encourage foreign investors to bring conflict and disagreement to the above-mentioned procedures, Vietnamese State agencies are responsible for handling this type of case, this needs to be objective, impartial and absolutely compliant with the law in resolving conflicts, disputes between State agencies and foreign investors d) Make priority for reconciliation measures in resolving disputes with foreign investors On the basis of assessing the details and specific contents of the dispute if reconciliation really benefits the Government and Vietnamese State agencies, reconciliation must always be considered a priority measure in the process of settling international investment disputes because successful reconciliation will ensure that the two parties will suffer the least in terms of time and finance; even 79 business opportunities for investors and prestige and confidence in Vietnam's investment environment Therefore, for the above cases, the State agencies participating in the dispute resolution, especially the chairman Agency on this matter, shall not be determined under the "all cost" lawsuit that reconciliation must always taken into account as a priority measure during the resolution process, including before, during the time the case is brought to international arbitration State agencies assigned to participate in resolving disputes between the Government and foreign investors should always try to take advantage of the opportunity to reconcile and be sufficiently given the opportunity to reconcile when the agency The judge made the final decision on the dispute e) Assess the claim: making all relevant documents available to the lead agency at short notice It is essential for the lead agency or the commission in charge of receiving all the documentary evidence of facts and legal documents soonest in order to get a clear picture of the problem at hand, to assess the risk of escalation, to monitor the available time frame and to undertake the steps and procedures set forth by the investment treaty or the contract Information pertaining to the potential magnitude of the case, to the risk involved, and to possible implications of an early settlement is not only based on the legal issues where advice can be given by outside counsel but also on a more political assessment related to making the right decision at the right time Inter-institutional arrangements made by law or established as a system inside the host government, are meant to facilitate early settlement decisions based on early and complete information, appropriate power and budgetary authority They will also make it easier for an aggrieved investor to identify early on the proper procedure to start an amicable discussion in view of a settlement The investor can so before the parties have started investing important amounts in preparing their defense, thereby avoiding loss of time and the conflict to escalate Establishing such a system by law will also enhance the transparency and accountability on the part of the government actors 80 3.2.2.5 Ensure authority to negotiate and settle - budgetary authority Domestic regulations relating to the responsibilities of state officials may be given when exercising their responsibilities including personal responsibility and financial responsibility Government officials assigned to implement commitments in investment agreements or dispute prevention programs should be handed not only the necessary authorities but also the reinsurance of the costs that may arise This constitutes an integral part of the dispute prevention program and requires close guidance and funding regulations to be used by state officials when negotiating or participating in mediation Complaints from investment agreements are still a new event in most countries Governments may be uncertain about that which agency is responsible for violating the agreement or contract, which agency is responsible for negotiating IIA, which agency is responsible for protecting the state, or any other agency is responsible for payment This question is not unimportant, because payment may require an agency to cut their other costs, which are usually within the annual budget Uncertainty about who bears this financial burden will increase the challenge faced by government officials when the government officials are responsible for handling ISD Therefore, there should be specific regulations on the use of the state budget to pay the costs incurred in ISDS such as which agencies are paid, what types of expenses are paid Article 24 Decision No 04/2014 / QD-TTg dated January 14, 2014 of the Prime Minister promulgating the Regulation on coordination in the settlement of international investment disputes stipulating the responsibilities of agencies, organizations and individuals have issued and applied illegal measures, contrary to Vietnam's international commitments or signed contracts and agreements with illegal foreign investors in Vietnam, resulting in international investment disputes being dealt with according to Vietnamese law Thus, this responsibility includes administrative, civil and criminal responsibilities depending on the extent of the violation The binding of such legal responsibilities will ensure that individuals and 81 competent state agencies practicing policies and law enforcement on foreign investment will be more cautious in performing their duties and tasks For violating individuals, they shall be handled according to law provisions on discipline of officials and public employees, material liability according to the provisions of civil law, and may even be subject to criminal liability if there are enough signals of crime For state agencies, they must also take material responsibility to compensate for a part of the financial losses from the lawsuit 3.2.2.6 Institutional response: ombuds and mediation services For investors, an ombuds office provides an institutional interlocutor to turn to, an official channel to address issues and problems at an early stage It can remain on the informal level but can also constitute a formal approach to the host government and a request to resolve the issue It can constitute a mandatory channel or be available to the investor as an additional choice It may operate according to strict procedures or be available in a more flexible manner In any event, the ombuds office can constitute a way for the investor to attempt a prompt, early, potentially cheap and amicable resolution of a problem relating to its investment For host States, an ombudsman or ombuds office constitutes the first contact point or gateway to deal with a problem encountered by a foreign investor The ombuds office can provide early information to the authorities and enable them to assess the problem It may also facilitate early action, if required, allowing the authorities to correct the problem before it worsens The ability of the ombudsman or ombuds office to take corrective action or to request that corrective action be taken by another agency or sub-national authority of the government will depend on its institutional location inside the government In practice, the ombuds office can belong to investment promotion agencies, at the central or regional level, within a Ministry or as a separate entity directly under the Prime Minister or the President It can take the form of a single authority or of a commission comprising various agencies It can also be set up under a treaty in the form of a joint commission comprising representatives of the States members of the 82 treaty For instance, the Commission for Environmental Cooperation helps prevent potential trade and environmental conflicts related to NAFTA and may be adapted to potential investment disputes A similar approach as above can be found in the setting up of an investment mediation service This approach can be taken by the host government by instituting a mediation service available for foreign investors or designating a mediator whose function will be to hear the complaints, bring the parties together, facilitate the dialogue and possibly resolve the problem before it turns into a dispute that can only be settled by courts or international arbitration The idea is similar to that of an ombudsman An investment mediator would be “above” the dispute (or potential dispute) The functions of a mediation service would be those of a communicator, adviser, facilitator – not those of an administrator or judge – and it can, in theory, respond to requests from the government as well as investors 3.2.2.7 State-State cooperation in dispute prevention Another way of preventing disputes from emerging and reaching the international arbitration phase is by enhancing State–State cooperation on relevant matters To a certain extent, communication and interaction among States on issues related to investment agreements and Investor–State disputes have constituted common practice in the past, offering important lessons when considering approaches to making such practice more formal At the same time, new previously non-existent channels of State–State cooperation can be thought of, in order to avoid the perception of going back to diplomatic protection of earlier days It is important to note that not only predominantly capital-importing countries have been found to show interest in finding ways of preventing disputes from escalating into international arbitration Equally, capital-exporting countries at times also engage in activities on behalf of their investors to prevent disputes from escalating Generally, the interest of the investor in having its complaint addressed and grievance removed in a quick and uncomplicated matter is likely to be large, and preferable to costly and time-consuming ISDS procedures 83 The current construct of international arbitration to settle Investor–State disputes under the ICSID Convention has been set up in order to remove Investor– State disputes from political pressure and to settle these cases in a legal framework However, as mentioned before, common practice among States has been the issuance of complaints by diplomats of the home country towards the government of the host country on behalf of an aggrieved investor - the “ambassador knocking on the door of the host country government ministry” Article 27 of the ICSID Convention (ICSID, 2006a) explicitly allows such involvement by diplomats to take place, but defines clear limitations: “(1) No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention […] “(2 Diplomatic protect for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating the settlement of a dispute.” Nevertheless, diplomatic exchanges on investment disputes by and large resemble ad-hoc processes without any basis in existing law or international agreements While diplomatic contacts and an engagement by prominent diplomats on behalf of an investor offering “good offices” may have some impact on the host government, this approach is likely to face limitations as it creates a sense of diplomatic pressure exerted on the host country government akin to the politicization and “gunboat” diplomacy described earlier Moreover, such diplomatic efforts lack the nature of a more formal institutional process between States where defined channels of action in response to a complaint are specified Hence, if diplomatic channels are used to address potential disputes between investors and the host State, attention should be paid that this happens through previously agreed-upon procedures that establish a mentality of cooperation rather than confrontation 84 CONCLUSION In the trend of globalization, foreign investment plays an increasingly important role for economies of nations, especially for developing countries, including Vietnam The benefits gained from this activity are very high, but the challenges posed are no less, especially the challenge from resolving ISDs A comprehensive study of this issue helps us to better understand the theory and practice of ISD settlement The theory of ISD settlement in our country still has many issues that need to be improved There are many ways to deal with ISD, which are stipulated in national laws and IIAs such as negotiation, mediation, Vietnamese courts, Vietnamese arbitration, foreign arbitration, ICSID mechanism, sub-mechanism support of ICSID, arbitration under UNCITRAL rules Specifically, using which method is selected by foreign investors, but in practice, foreign arbitration is the main method that foreign investors choose in settling investment disputes with the Government of Vietnam Settlement of Investor - Vietnamese State disputes by arbitration is under the influence of at least two legal systems: the legal system of the host country and the International treaties, international practices, foreign case law The trend of international integration requires Vietnam to complete its domestic legal system related to ISD settlement, specific Investment Law, Commercial Arbitration Law, Civil Procedure Code etc and related documents in order to meet the suitable with the direction in accordance with the participation of the IIAs, to make the ISD resolution methods flexible, fast and economical, while ensuring effective and effective Vietnam accepts the method of settling investment disputes between foreign investors and the Government of Vietnam to both attract foreign investment and enhance Vietnam's position and reputation in the international arena In a developing country like Vietnam, the legal system and policies are not yet completed, the officials in the state agencies are not professional, not yet knowledgeable about international law etc so easy give rise to investment disputes between foreign investors and the Vietnamese Government In addition, the lack of 85 experience and understanding of ISD settlement of state agencies it makes to confusion, lack of initiative in responding to ISDs, sometimes not resolving ISDs so the investor sues at international arbitration Therefore, the first requirement for improving professional capacity and awareness of state officials in the prevention and resolution of ISD is necessary The settlement of ISD at arbitration will result in huge costs for the developing countries like Vietnam, while also reducing the attractiveness of the investment environment Therefore, it is better to limit and prevent ISDs from arising by measures such as completing the regulations on investment in the direction of simplifying investment procedures; develop a system of ISD warning, prevention and prevention mechanisms according to the experience of countries around the world, countries that have achieved certain effects in preventing ISD from these mechanisms; focus on using negotiation and mediation methods when disputes arise, minimizing the need to resolve ISD at arbitration The introduction of ISD precautions is one of the important requirements of the international integration process This is an objective indispensable requirement to meet the practical needs in order to resolve the ISDs that have been and will be arising, to ease the tensions between foreign investors and the Government of Vietnam The Vietnamese government expressed goodwill of good relations with foreign investors, thereby contributing to attracting more and more investment capital into Vietnam 86 LIST OF REFERENCES A In Vietnamese I Legal documents Công ước Washington năm 1965 giải tranh chấp đầu tư nhà nước công dân nước khác (ICSID) (Washington Convention in 1965 on resolving investment disputes between the state and other nationals (ICSID).) 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EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY _ MASTER THESIS MECHANISM AND MEASURES TO PREVENT INTERNATIONAL INVESTMENT DISPUTES – INTERNATIONAL EXPERIENCE AND LESSONS FOR VIETNAM Specialization:... important to prevent international investment disputes It is the reason the author selects the theme: Mechanism and measures to prevent international investment disputes – International experience and. .. Investor - State dispute 59 3.2 Lessons learn for Vietnam to prevent Investor-State disputes and applied solutions 61 3.2.1 Lessons for Vietnam to prevent Investor-State disputes