COMPARATIVE ANALYSES OF DISPUTE SETTLEMENT CLAUSE IN EVIPA, Essays (high school) of Economics

Download COMPARATIVE ANALYSES OF DISPUTE SETTLEMENT CLAUSE IN EVIPA and more Essays (high school) Economics in PDF only on Docsity! FOREIGN TRADE UNIVERSITY HO CHI MINH CITY CAMPUS MID-TERM REPORT Subject: International Investment COMPARATIVE ANALYSES OF DISPUTE SETTLEMENT CLAUSE IN EVIPA Name Student ID Nguyen Thién Tuong 1911115582 Tran Thanh Tang 1911115580 Dang Thi Kha Van 1911115595 Dinh Nho Lam Tuyén 1911115583 Dang Khanh Vy 1911115612 Nguyen Phuc Thao Vi 1911115603 Class: K58CLC4 Instructor: Pham Thi Mai Khanh Ho Chi Minh City, April 2021 TABLE OF CONTENT Abstract 1 I. Introduction 2 II. Main Body 3 Chapter 1: Overview 3 1. Current Situation of Vietnam and the need for Dispute Settlement in International Agreement 3 2. The present ISDS has disadvantages 4 2.1. Lack of impartiality 4 2.2. Lack of consistency 5 2.3. Lack of transparency 6 3. The Dispute Settlement Clause in EVIPA 7 3.1. EVIPA 7 3.2. Dispute Settlement Clause in EVIPA 8 Chapter 2: Analyses of the Dispute Settlement Clause in EVIPA 10 1. Dispute Settlement at the Investment Tribunal 10 2. The advent of a separate and new appeal tribunal 11 3. Strict regulations and proceedings for a dispute to be settled 12 4. Final award is restricted but it has a high compliance value 13 5. Security for cost and concurring proceeding prevent lack of goodwill mvestors from abusing ISDS 13 6. Transparency of proceedings provisions 15 7. | New regulation on third-party funding 15 Chapter 3: Remaining Questions 16 Abstract This paper attempts a comparative analysis on the Dispute Settlement Clause in the EU - Vietnam Investment Protection Agreement (EVIPA) based on the information gathered from secondary sources. In the context of international economic integration, EVIPA was approved marking a historic step in Vietnam-EU trade relations. After demonstrating some fundamental information, the paper would gain more detailed descriptions by going through each segment and providing the estimation of Vietnam's opportunities and challenges. EVIPA will not only protect investors and their investments but also protect a country’s right to oversee the implementation of public policies. In addition, the court system will be an independent dispute resolution system. However, there are some remaining questions in EVIPA that need to be concerned and tackled in order to maintain a strong bilateral relationship with EU countries. EVIPA is considered as the contribution to provide a legal framework and improve Vietnam's opportunities to attract investment capital from the EU, but at the same time create many challenges. Therefore, this paper also demonstrates opportunities and challenges exposed to Vietnam in the implementation of this agreement, especially in the Dispute Settlement Clause. Ww I. Introduction According to the Ministry of Planning and Investment, the implementation of commitments under the EVIPA Agreement, which has just been ratified at the 9th Session of the 14th National Assembly, will be the driving force for Vietnam to continue to improve the institutional system and policies to improve the ivestment and business environment towards more favorable, fair, safe, transparent and friendly ways for mvestors of all economic sectors. Along with commitments to open goods, services and investment markets under the EU-Vietnam Free Trade Agreement (EVFTA), the implementation of EVIPA will create a favorable environment for Vietnam to attract investment in a number of fields where the EU has potentials and strengths. This is the result of the fact that the level of EU's liberalization of ivestment in Vietnam will be increased, especially in some specialized services sectors such as financial services, telecommunications services, transportation services, distribution services, processing industry, manufacturing using high technology, clean energy, renewable energy. In addition, investment from the EU in these sectors can support the development of the domestic economic sectors. Through production links with EU-invested enterprises, domestic ones will have the opportunity to participate in EU and global value chains, supply chains as well as receive technology transfer, thus they will receive spillover effects on technology, improving productivity and quality, contributing to increasing competitiveness and efficiency of the economy. The provisions of the EVIPA Agreement are elaborated with clear criteria and also recognize each party's right to issue and implement policies. This will contribute to ensuring that the provisions of EVIPA are understood and applied consistently, which helps to munimize the possibility of disputes. On the other hand, the establishment of a permanent dispute resolution system under EVIPA is considered a significant stride compared to the arbitration mechanism for dispute settlement that Vietnam has applied under 66 bilateral Investment Promotion and Protection Agreements (IPPAs) signed for nearly 30 years. 3 With the above progress points, EVIPA creates a legal basis for Vietnam to implement commitments and laws fairly, transparently, consistently and effectively. Nevertheless, Vietnam's institutions, policies and management mechanisms still have some limitations. Infrastructure systems and human resources have not met the requirements of economic development in general and EU investors in particular. The mmplementation of the dispute settlement mechanism under EVIPA also poses greater challenges in building and enforcing the law as well as preventing and effectively resolving disputes with investors. This explains why exploiting in this new generation agreement is an urgent matter. II. Main Body Chapter 1: Overview 1. Current Situation of Vietnam and the need for Dispute Settlement in International Agreement Bilateral trade and investment links between the EU and Vietnam have been steadily strengthening, from the establishment of diplomatic between the two sides in 1996, through concluding in 2004 the bilateral negotiations of Vietnam’s accession to the WTO and signing The Agreement on Market Access22 and finally to Vietnam’s accession to the WTO in 2007. There is a different importance of the EU and Vietnam in thei mutual trade, reflecting the differences in the size of their economies. The European Union is Vietnam’s second most important market for goods, after the USA. In 2018 Vietnam exported goods worth about 35.5 billion euros to the EU, which accounted for almost 18% of its total exports. According to the EU statistics, EU imports from Vietnam amounted to EUR 38 billion at that time, putting the country in 10th position among suppliers of goods to the EU market, with a share of almost 2%. In the same year, the EU exported goods worth about 11 billion euros to Vietnam, which gave Vietnam the 31st position with a share of 0.6% in the EU’s external exports. In turn, the EU ranked 4th (after China, South Korea, and Japan) among the most important importers to Vietnam, with a share of 6% (European Union). 6 The second problem concerns the lack of consistency in ISDS practice. This issue arises from the presence of a multitude of agencies and ad hoc tribunals that collectively resolve investment-related issues without access to a central hierarchical jurisdiction capable of umfying methods and interpretations. As a result, there is no room for comprehensive analyses that reconcile the various treaties currently in effect. The absence of a correction instance accessible by appeal is the third issue, which is one of the most common critiques of the ISDS. As a result, some critics have advocated for a two-tier body that could encourage correctness but still ensure accurate decisions in the event of erroneous prizes. "The investment appellate body will work on the issues that separate the parties, as it will have the advantage of making one fully-reasoned opinion before it," says the article. 2.3. Lack of transparency The lack of openness in standard ISDS has been noted by critics. This issue is thought to have arisen when investment arbitration evolved from commercial arbitration, which has secrecy as a guiding principle and one of its distinguishing features. For those opposing ISDS, it is shocking that, besides the ISDS, there is "no other legal dispute settlement system under public international law [...] that either prevents the publication of its determinations or relies in whole or in part on the publication of selected portions of a decision". As a result, there is a strong push for the introduction of comprehensive, timely, and readily readable publications of rulings and cases during the trials. Nonetheless, given the public interest at stake, the presence of a new movement aimed at fairness in international arbitration is undeniable. While the majority of the current ITAS has introduced the complete publishing of all records and decisions in web-accessible formats, certain treaties and organizations that are resistant to disclosure can still be found. Furthermore, some experts argue that secrecy protects parties by allowing them to negotiate freely amongst themselves in the quest for a resolution to their differences, which 7 could be more difficult to do in public. However, transparency should be upheld as a general tule, with secrecy permitted only under rare cases, such as where the tribunal deems it necessary for the classified discussion of sensitive material. 3. The Dispute Settlement Clause in EVIPA 3.1. EVIPA Many countries have aggressively established frameworks for settling disputes between foreign and state-receiving investors (Investor-State Dispute Settlement, abbreviated as ISDS) at international trade conventions to mitigate uncertainties for foreign investors while injecting money into global markets while avoiding trade clashes from developing into political tensions. As a result, ISDS is a clause that requires a foreign investor to sue the government of the host country by an international arbitration court that adjudicates in compliance with the terms of a convention that the country has signed. As of January 2019, there were 942 lawsuits between international mvestors and governments around the world, with 117 countries having filed at least one lawsuit with investors. Over the last year, new conflicts have mostly arisen in developed nations and markets that are reforming. Indeed, in recent years, ISDS has evolved from a tactic to assist companies in suing governments over laws to a powerful "bullying" tactic that developed-country corporations use against governments when their interests are jeopardized. Notably, in situations where the arbitration council has ample discretion to make a decision, 61 percent of the decisions are in the mvestor's favor (1987 - 2018, according to UNCTAD and ISDS Navigator figures). In this sense, the Investment Protection Agreement between Vietnam and the European Union (EVIPA), which was only signed in June 2019, is being assessed for its multiple contents to ensure investor capital and asset welfare. 8 Many regulations are more progressive than the investment agreements that Vietnam has signed with each EU country while ensuring a balance between imvestor protection and protection of the interests of the public and the state. Accordingly, the commitments in the EVIPA have formulated in more detail the bilateral investment promotion and protection agreements that Vietnam has signed with EU member states; have clear criteria for each act that the State must not do; additional exceptions to ensure the right to adjust the policy of the host country. Besides, the EVIPA has added regulations that recognize the right to adjust the policies of the receiving country. Accordingly, the parties assert management rights in their territories to achieve policy objectives such as protecting public health, safety, the environment or public ethics, protecting society or consumers, expediting and protecting cultural diversity. Regarding the settlement of investment disputes, EVIPA builds a permanent dispute resolution agency to replace the dispute resolution mechanism by arbitration according to the case in mvestment promotion and protection agreements that Vietnam has signed with EU member states. Under this mechanism, investment disputes under the EVIPA are settled at the permanent adjudicating body with 2 levels of first-instance and appellate trials. The agreement would allow Vietnam to attract foreign direct investment in sectors where the EU has potential, such as high technology and green energy, while EU investors will have expanded access to the Vietnamese market in areas such as business services, climate, banking, insurance, and shipping. 3.2. Dispute Settlement Clause n EVIPA 3.2.1. Clarification the claimant In EVIPA, the claimant's reach is limited to the party who caused injury, as defined by Chapter 2 of EVIPA, similar to the standard IIA. The remaining clause of the scope, on the other hand, should be taken into consideration. Although IIA attempted to explain the claimant's matter, which may imvolve an investor-owned locally founded business. Unfortunately, this initiative could result in issues with the supposed state's domestic ll Tribunal and Appeal Tribunal are required with many qualifications, expertise and experience in public international law. Those with these qualified requirements will be appointed by the Committee (established under the EVIPA, composed of representatives from the EU and Vietnam to manage the EVIPA implementation) for a four-year term. Considering the structure of the two Tribunal, the members are selected randomly and unpredictably in order to ensure the fairness and the integrity of each settlement. The Investment Tribunal consists of nine members, three of which are EU, three are Vietnamese citizens and three are residents of third countries. The Appeal Tribunal is composed of six members, of whom two are nationals of a Member State of the Union, two are nationals of Viet Nam and two are nationals of third countries. All Members of the Tribunal and Appeal Tribunal will be appointed through a jomt decision taken together by the EU and Vietnam. The Members shall be independent beyond any doubt, not affiliated with any government and must have demonstrated expertise in public international law and must possess the qualifications required im their respective countries for appointment to judicial offices or be jurists of recogmzed competence. If particular technical knowledge is required for an individual dispute, the agreement also foresees the possibility to appomt one or more experts to the Tribunal. In detail, when a dispute appears, the two tribunals will be formed in a random and unpredictable way for solving the dispute, so that it could ensure the fairness and integrity of the final decision. Each level will consist of three members who will be selected from the Tribunal and the Appeal Tribunal respectively. The three members of both levels must include three different individuals from different nations, of which one member is a resident of member states of the EU, one member is a Vietnamese resident and one member is a resident of the third country. The person who takes the responsibility for the selection and division is The chairman, who shall be the nationals of the third country. 2. The advent of a separate and new appeal tribunal Each investment dispute when brought to the Investment Tribunal will at first be resolved by a division of the Tribunal, and in case of an appeal, the appeal will be resolved by a division of the Appeal Tribunal. 12 It is composed of independent standing members who participate in the review of preliminary decisions if appealed. The Appeal Tribunal in EVIPA bears some similarities with The Appeal Tribunal in WTO. , the number of members of The Appeal Tribunal in EVIPA could be increased to meet the request for settlement of the dispute. Through this agency, ICS can overcome the drawbacks of traditional arbitration, moreover creating more certainty and accuracy of the decisions. 3. Strict regulations and proceedings for a dispute to be settled To initiate the lawsuit at the Investment Tribunal, it is compulsory that investors from a party must initially send a request for consultation to the other party. The request should be sent at least 3 years since the party acknowledged the breach or damage of the investment. On the off chance that the dispute isn't settled within 90 days from the date of sending the consulting request, the investors could send a notification of lawsuit to the other party. The investors have the privilege to document a claim for filing a lawsuit to the Tribunal only if it is more than half of a year the question has been left unsolved and at least three months have passed since the date of the notification of lawsuit sent by the party. In case the investors does not file a lawsuit within 18 months, it will be considered that the investors have removed the lawsuit and reserve no privilege to file a new lawsuit anymore. Within 90 days since receiving the notification for the lawsuit, The Chairman of the Tribunal will select a court and form a tribunal to solve the case. The trial panel of the Tribunal will give a provisional award within 18 months since the filing of the lawsuit and the disputing parties have the right to offer an appeal against the decision within 90 days of its issuance. On the off chance that no appeal is recorded in the predefined time limit, the intern ruling will be the final one and put into force. Regarding the time aspect of the proceedings, EVIPA has defined the time limit for an international investment dispute to be settled between foreign investors and host countries in EVIPA (if there is no appeal) only lasts no more than 03 years. Although it is not very short compared to the arbitration procedure at ICSID, it can be considered as a reasonable duration. It is worth mentioning that each proceeding at ICS will have a specific, clear 13 timeline and will not make allowance for any delay in the proceedings mentioned above. This will help ensure a quick and efficient dispute resolution process. 4. Final award is restricted but it has a high compliance value One thing to keep in mind about the Investment Court's decisions is that the steps that it can declare are limited. The Investment Court can only render a judgment that forces the offending country to do the followimg, according to EVIPA regulations: pay costs and interest; return the property to the investor or a legal entity owned or managed by the investor. The Investment Court does not have the authority to overturn national policies. This is to ensure that the principle of balancing investor rights and respect for national regulatory authority of State agencies, which EVIPA values and embodies im all regulations in EVIPA's dispute resolution decision, is upheld. The parties will comply with the final award (including the judgments of the Trial Panel in the first instance and the Appellate Trial Panel) without recourse to appeal, investigation, cancellation, cancellation, or any other form of redress. Let's make a change. The EVIPA clause differs from the ICSID Convention and the CPTPP. The ICSID and CPTPP conventions also provide for the amendment and cancellation of awards. The two sides agreed to accept and apply the final judgment of the national court in thei respective territories. Although the Investment Court has certain limitations in terms of the actions it can take, EVIPA is a watershed moment because it allows the Investment Court to automatically implement its decisions in a member country without the need for accreditation or m-country compliance procedures. According to EVIPA's terms, the Investment Court's Final Judgment shall be applied by each Party to the Agreement as though it were that Party's final court judgment, and will not be challenged, reviewed, cancelled, or otherwise modified. Vietnam is currently reserving the application of this clause to Final Judgments in which Vietnam is the defendant within five years of the Agreement's entry into force. As a result, the 1958 New York Convention would refer to the acceptance and compliance of Final Judgments of the Investment Court in which Vietnam is a defendant during this 5-year period. 16 with the claim. This is one of the provisions that permits disputing parties to file a complaint at the ICS. Chapter 3: Remaining Questions 1. The expense of maintaining the two-level investment tribunal system mvolved in dispute resolution According to paragraph 15 of Article 3.38 EVIPA, all parties must pay the retainer fee and daily fee into an account maintained by the ICSID Secretariat, taking ito account their respective levels of growth. In case one Party fails to pay the retainer fee or regular fee, the other Party has the option of paying in its place. Any such arrears will be paid in full, plus interest, if applicable. As a result of the above regulation, it is possible that one party will be unable to pay and the other will refuse to pay, leading to "neglect" not to pay. Then ICS will not be able to maintain operation, can it cause the system to collapse, so that the ISDS mechanism under EVIPA cannot maintam? So, the key to resolving this problem is that the two Parties must try to maintain a harmonious level of cost contribution so that each side has their own voice and create a binding so that neither party has the right to interfere in the operation of ICS. 2. The principles of consensus in decision-making Under EVIPA, the principle of consensus is replicated in the Committee’s decision-making, just as it is i the WTO. All of the Committee's decisions and recommendations will be based on the mutual consent, as mentioned in paragraph 3 of Article 4.2 EVIPA. This includes the adoption of membership designation decisions, increasing or decreasing the number of members at the Tribunal and Appeal Tribunal levels. Failure to guarantee the number of permanent members at two levels is inevitable if the mutual consent does not produce the desired result. In EVIPA decision to increase the number of members was made on the principle of consensus of the Committee. As a result, if there is any one-sided opposition, the consequences would be serious. Because of the aforementioned concerns, EVIPA should prepare for potential risks and, in particular, how to address them if more precise and realistic regulations fail to achieve mutual consent. 17 3. The Investment Court system will not be able to overhaul conventional arbitration; on the contrary, it can sustain a prolonged crisis of legitimacy The International Centre for Settlement of Investment Disputes (ICS) model has sparked several debates in the EU and the scientific community, resulting in two opposing viewpoints. In which there is the view that conventional arbitration does not require a flexible solution in the form of ICS, but rather only the gradual improvement to address its shortcomings. The International Centre for Settlement of Investment Disputes (ICS) will not reform Investment Arbitration; on the contrary, it will exacerbate the legitimacy problem. Furthermore, several studies have expressed concern that ICS may have an effect on the autonomy of EU law. With regard to the issues posed, the interpretation of EU law is a prerequisite for the consistency of all international dispute settlement mechanisms. Chapter 4: Opportunities and challenges exposed to Vietnam 1. Opportunities Opportunities from EVIPA With the ratification of EVIPA, foreign investors in general, and EU investors in particular, have greater confidence in the business and investment environment in Vietnam, as EVIPA aims to protect investors and mvestments in the EU and Vietnam and ensure that they will be given fair treatment. Hence, the implementation of the Vietnam - EU Investment Protection Agreement (EVIPA) will provide a good basis for expanded trade and investment opportunities between the two parties. In addition, EVIPA will be an impetus for Vietnam to continue reforming and perfecting institutions to attract investment as having appropriate regulations will help Vietnam take better advantage from the Agreement. Specifically, right regulations, based on international standards and practices, will provide benefits to business, and attract imternational businesses that bring even much higher benefits. Better regulation inside Vietnam will also improve the competitiveness of Vietnamese firms operating abroad and open opportunities for Vietnamese investors to access high-level investment to markets of European Union countries. Opportunities from Dispute Settlement Chapter in EVIPA 18 Fist, the Vietnam domestic law on arbitration or international investment dispute resolution courts need not change anything. The ISDS mechanism in EVIPA exists in parallel with domestic investment dispute settlement mechanisms, not a replacement. The regulations in EVIPA only apply to the EU investors who meet the specified conditions with the types of disputes specified in the Agreement. Therefore, Vietnam can make use of the two law systems simultaneously without the fear for conflicts or overlapping decisions. Second, the Agreement encourages the application of amicable measures in resolving investment disputes. Accordingly, the Agreement devotes Article 3.29 and Article 3.30 about the amicable resolutions. By comparison with the court or arbitration settlement, in general, these measures are quite simple, less expensive and troublesome for the disputing parties. Since EVIPA is in favor of amicable measures, Vietnam also benefits from those actions and practices, which in turn helps to reduce the direct confrontations between parties when disputes show up. Third, the EVIPA also specifies selection criteria and codes of conduct for members of the judiciary. When a specific investment dispute arises, the Chairman of each hearing level will appomt the members to accept that dispute. These regulations are assessed to help improve the fairness and consistency of dispute settlement activities, limit risks of errors, and enhance the independence of the dispute settlement agency. The disputing parties are no longer able to choose their own dispute resolution, members must also strictly adhere to the code of conduct set forth in the Agreement. 2. Challenges First, concerns about members at two levels of adjudication remam. Because the requirements for the candidates are difficult to quantify, the EU and Vietnam need to be cautious in choosing the appropriate members for the Tribunal . In addition, the candidates at the two levels should acquire the knowledge of not only national policy, economic policy but also the evaluation of those policies. The broader is the field of knowledge, the more comprehensive the decisions the members could make. Second, the pressure of procedural time. The long procedural period requires each party to understand the process of proceeding, so it is necessary to grasp the idea of focusing on "quality" over "quantity" in the dispute settlement from the beginning. Vietnam needs to 21 References 1. 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