Investment Treaty Arbitration

Investment Treaty Arbitration: Vietnam

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Vietnam

BIT Contracting Party or MIT

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

Algeria (Not in force)

Full text unavailable

             

Argentina (1 June 1997)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Armenia (28 April 1993)

Full text unavailable

             

Australia (11 September 1991)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Austria (1 October 1996)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Bangladesh (Not in force)

Full text unavailable

             

Belarus (24 November 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

BLEU (Belgium-Luxembourg Economic Union)(11 June 1999)

Yes

Yes

No

Yes

No

6 months

No

Yes

Bulgaria (15 May 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cambodia (Not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Chile (Not in force)

Yes

Yes

No

Yes

No

4 months

Yes

Yes

China (1 September 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cuba (1 October 1996)

Yes

Yes

No

Yes

No

6 months

No

Yes

Czech Republic (9 July 1998)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Denmark (7 August 1994)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Egypt (4 March 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Finland (2 May 1996)(Terminated)

Yes

Yes

No

Yes

No

6 months

No

Yes

Finland (4 June 2009)

Full text unavailable

             

France (10 August 1994)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Germany (19 September 1998)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Greece (Not in force)

Document requires translation

             

Hungary (16 June 1995)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Iceland (10 July 2003)

Full text unavailable

             

India (1 December 1999)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Indonesia (3 April 1994) (Terminated)

Iran, Islamic Republic of (Not in force)

Full text unavailable

             

Italy (6 May 1994)

Yes

Yes

No

Yes

No

6 months

No

Yes

Japan (19 December 2004)

Yes

 

Yes

Yes

No

3 months

Yes

Yes

Kazakhstan (7 April 2014)

Full text unavailable

             

Korea, Dem. People’s Rep. of (Not in force)

Full text unavailable

             

Korea, Republic of (4 September 1993)(Terminated)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Korea, Republic of (5 June 2004)

Full text unavailable

             

Lao People’s Democratic Republic (23 June 1996)

Full text unavailable

             

Latvia (20 February 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Lithuania (24 April 2003)

Full text unavailable

             

Malaysia (9 October 1992)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Mongolia (13 December 2001)

Full text unavailable

             

Morocco (Not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mozambique (29 May 2007)

Full text unavailable

             

Myanmar (Not in force)

Full text unavailable

             

Namibia (Not in force)

Full text unavailable

             

Netherlands (1 February 1995)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Oman (Not in force)

Full text unavailable

             

Philippines (29 January 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Poland (24 November 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Romania (16 August 1995)

Yes

Yes

No

Yes

Yes

6 months

Yes

Yes

Russian Federation (3 July 1996)

Full text unavailable

             

Singapore (25 December 1992)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Slovakia (18 August 2011)

Full text unavailable

             

Spain (29 July 2011)

Full text unavailable

             

Sri Lanka (Not in force)

Full text unavailable

             

Sweden (2 August 1994)

Yes

Yes

No

Yes

No

6 months

No

Yes

Switzerland (3 December 1992)

Yes

Yes

No

Yes

Yes

6 months

No

Yes

Taiwan, Province of China (23 April 1993)

Full text unavailable

             

Tajikistan (Not in force)

Yes

Yes

Yes

Yes

No

6 months

Missing page 6

Thailand (7 February 1992)

Yes

Yes

Yes

Yes

No

No

No

No

Turkey (Not in force)

Text not available

             

Ukraine (8 December 1994)

Full text unavailable

             

United Arab Emirates (Not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Kingdom (1 August 2002)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Uruguay (9 September 2009)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Uzbekistan (6 March 1998)

Full text unavailable

             

Venezuela, Bolivarian Republic of (17 June 2009)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

FTAs/EPAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection and security

Most-favoured-
nation (MFN)

Umbrella clause

Cooling-off period

Local courts 6

Arbitration

Japan - SEA Nations ( 8 October 2003)

Yes

Yes

Yes

Yes

Yes

90 days

Yes

Yes

Korea (13 December 2005)

Yes

No

Yes

Yes

No

90 days

No

No

India (8 October 2003)

No

No

Yes

Yes

No

Not stated

No

No

Chile (14 March 2012)

No

No

Yes

Yes

Yes

40 days

Yes

Yes

Australia-New Zealand
(1 January 2010)

Yes

Yes

Yes

Yes

No

Not stated

No

Yes

People’s Republic of China (4 November 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Eurasian Economic Union (Not in force)

               

Republic of Korea (FTA) (20 December 2015)

               

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Vietnam

Issue

Distinguishing features in relation to the definition of ‘investor’

Investor

In general, Vietnamese BITs define ‘investor’ to either mean natural persons who have nationality, or economic entities established and domiciled within the territory of the Contracting Parties (some examples include the Vietnam-China BIT, Vietnam-Czech Republic BIT, Vietnam-India BIT, Vietnam-Denmark BIT and the Vietnam-Japan BIT) or with a seat within the territory (Vietnam-Bulgaria BIT and the Vietnam-Romania BIT, Vietnam-Sweden BIT). Other examples include the Vietnam-Poland BIT.

The Vietnam-Indonesia BIT defines ‘investor’ as a company being a national of a Contracting Party who effected or is effecting investments in the territory of the other Contracting Party.

Control by a non-national

Companies that are not controlled by non-nationals may not be eligible for protection under the Vietnam-Australia BIT which provides that ‘where a company of a Contracting Party is owned or controlled by a citizen or a company of any third country, the Contracting Parties may decide jointly in consultation not to extend the rights and benefits of this Agreement to such company.’

Under the terms of the Vietnam-Netherlands BIT, ‘national’ includes legal persons not constituted under the law of that Contracting Party but controlled, directly or indirectly, by natural persons.

Permanent residents

The Vietnam-Malaysia BIT is an exception to most of the Vietnamese BITs, in that it allows for any natural person possessing the citizenship of or permanently residing in a Contracting Party.

The Vietnam-Australia BIT does not apply to a natural person who is not a citizen of a Contracting Party but whose residence in that Contracting Party is not limited as to time where the provisions of an investment protection agreement between the other Contracting Party and the country of which the person is a citizen have already been invoked; or if the person is a citizen of the other Contracting Party.

Most other Vietnamese BITs are silent as to the eligibility of permanent residence (i.e. Vietnam-United Kingdom BIT, Vietnam-Singapore BIT, Vietnam-Denmark BIT, Vietnam-Cuba BIT, Vietnam-Japan BIT, Vietnam-Romania BIT, Vietnam-Thailand BIT, Vietnam-Netherlands BIT, Vietnam-Czech Republic BIT, Vietnam-Indonesia BIT, Vietnam-Latvia BIT, Vietnam-Philippines BIT, Vietnam-Poland BIT)

Companies / economic entities

The Vietnam-United Kingdom BIT states that a company is one that is incorporated or constituted under the law in force in any part of the United Kingdom or in any territory covered by the BIT. The Vietnam-Singapore BIT, Vietnam-India BIT, Vietnam-Indonesia BIT and the Vietnam-Poland BIT have like provisions. A similar thread would apply to any Vietnamese corporation having their seat in Vietnam (Vietnam-United Kingdom BIT, Vietnam-Czech Republic BIT,).

According to the Vietnam-Philippines BIT, any particular company may be excluded from the foregoing definition by mutual agreement on the grounds of the need to maintain public order, to protect essential security interests or to fulfil commitments relating to peace and security.

Comparatively, the Vietnam-Australia BIT provides in detail, that ‘company’ means any corporation, association, partnership, trust or other legally recognised entity that is duly incorporated, constituted, set up, or otherwise duly organised under the law of a Contracting Party, or under the law of a third country and is owned or controlled by a national of a Contracting Party under its law.

Enterprise ownership / control

The Vietnam-Australia BIT states that a natural person or company shall be regarded as controlling a company or an investment if the person or company has a substantial interest in the company or the investment. Any question arising out of this Agreement concerning the control of a company or an investment shall be resolved to the satisfaction of the Contracting Parties.

Interplay with other investment treaties

This also exists as a provision where an agreement shall not apply to a company organised under the law of a third country where the provisions of an investment protection agreement with that country have already been invoked in respect of the same matter (Vietnam-Australia BIT).

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Vietnam

Issue

Distinguishing features in relation to the concept of ‘investment’

Eligible assets

Investments eligible for protection under the Vietnamese BITs typically refer to either any or every kind of asset (some examples include the Vietnam-United Kingdom BIT, Vietnam-Latvia BIT, Vietnam-Hungary BIT, Vietnam-Czech Republic BIT, Vietnam-Indonesia BIT, Vietnam-Japan BIT, Vietnam-Netherlands BIT, Vietnam-India BIT, Vietnam-Sweden BIT, Vietnam-Singapore BIT, Vietnam-Cuba BIT Vietnam-Malaysia BIT and the Vietnam-Thailand BIT).

The Vietnam-Australia BIT has a more comprehensive descriptor that accounts for every kind of asset, ‘owned or controlled by nationals … and admitted by the other Contracting Party subject to its law and investment policies applicable from time to time’. Some BITs include a non-exhaustive list of examples, and might additionally include descriptors such as assets ‘invested by investors of one contracting State (i.e. Vietnam-Bulgaria BIT, Vietnam-Egypt BIT, Vietnam-Philippines BIT, Vietnam-China BIT – Note: these BITs are silent as to assets that are being controlled by investors.).

Most BITs further add that invested returns shall be treated as investments and any alteration of the form in which assets are invested or reinvested shall not affect their character as investments (i.e. Vietnam-Bulgaria BIT, Vietnam-Hungary BIT, Vietnam-Japan BIT and Vietnam-Romania BIT)

Special formalities

The Vietnam-Sweden BIT includes a segment on bookkeeping and auditing according to the standards which the investor is subjected to by his national requirements or according to internationally accepted standards (e.g. International Accounting Standards Committee (IASC)). The results of such accountancy and audit shall be freely available.

Returns

The Vietnam-Egypt BIT and Vietnam-Australia BIT provide that ‘return’ means an amount derived from or associated with an investment, including profits, dividends, interest, capital gains, royalty payments, management or technical assistance fees, payments in kind and all other lawful income.

Most other BITs have a similar, albeit, at times less exhaustive list of examples (i.e. Vietnam-United Kingdom BIT, Vietnam-Czech Republic BIT, Vietnam-Denmark BIT, Vietnam-Malaysia BIT, Vietnam-Latvia BIT, Vietnam-Thailand BIT, Vietnam-Poland BIT, Vietnam-Cuba BIT, Vietnam-Singapore BIT, Vietnam-China BIT (which also includes an explicit mention of ‘legitimate income’), and the Vietnam-Bulgaria BIT (which mentions ‘lawful income’).

Freely convertible currency

In general, the Vietnamese BITs are rather silent on this definition. One exception is the Vietnam-Australia BIT which defines ‘freely convertible currency’ to mean a convertible currency as classified by the International Monetary Fund or any currency that is widely traded in international foreign exchange markets. The Vietnam-Egypt BIT and the Vietnam-Latvia BIT define it to mean the currency that is widely used to make payments for international transactions and widely exchanged in principal international exchange markets.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Vietnam

Issue

Distinguishing features of the fair and equitable treatment standard

Fair and equitable treatment standards

The Vietnamese BITs share a similar standard in terms of protection with provisions revolving around ensuring and/or according fair and equitable treatment (like the Vietnam-Philippines BIT). One difference lies in the area of protection: with some BITs covering their own territory (Vietnam-Australia BIT, Vietnam-Bulgaria BIT), and others safeguarding interest in the territory of the other Contracting State (Vietnam-China BIT, Vietnam-Hungary BIT, Vietnam-Indonesia BIT, Vietnam-Cuba BIT).

The Vietnam-Singapore BIT includes a provision that these investments must be in line with general economic policy. Additionally, the Vietnam-Cuba BIT adds that the Contracting Parties shall guarantee that no discriminatory or unjustified measures be taken against the procurement, maintenance, utilization, transformation, termination or liquidation of the investments made. s

Customary international law

 

The Vietnam-United Kingdom BIT and the Vietnam-Bulgaria BIT provide that, if the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter contain rules … entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement. A similar approach can be found in BITs like the Vietnam-Hungary BIT, Vietnam-Czech Republic BIT, Vietnam-Cuba BIT and the Vietnam-Egypt BIT.

Non-Impairment

The Vietnam-Netherlands BIT provides that each Contracting Party shall ensure fair and equitable treatment of the investments of national of the other Contracting Party and shall not impair, by unreasonable or discriminatory measures, the operation, management, maintenance, use, enjoyment or disposal thereof by those nationals. Non-impairment is also mentioned in other BITs like the Vietnam-Sweden BIT.

Favourable conditions

The Vietnam-United Kingdom BIT and the Vietnam-Hungary BIT (along with most if not all other BITs like the Vietnam-India BIT) explicitly state that the Contracting parties should encourage and create favourable conditions.

It could also be provided for that if the treatment to be accorded by one Contracting State in accordance with its laws and regulations (to investments or activities associated with such investments of investors of the other Contracting State) is more favourable than the treatment provided for in this Agreement, the more favourable treatment shall be applicable (Vietnam-Poland BIT and Vietnam-China BIT). The Vietnam-Romania BIT has a similar thread. Under the Vietnam-Netherlands BIT and the Vietnam-Bulgaria BIT, these laws and regulations were expanded to include international agreements that contain regulations entitling investors to a treatment that is more favourable than is provided for by the present Agreement. The Vietnam-Singapore BIT has a similar approach.

Compensation for losses

The Vietnamese BITs provide for compensation when a Contracting Party adopts any measures relating to losses in respect of investments in its territory by citizens or companies of any other country (owing to war or other armed conflict, revolution, a state of national emergency, civil disturbance or other similar events), the treatment accorded to nationals of the other Contracting Party as regards restitution, indemnification, compensation or other settlement shall be no less favourable than that which the first Contracting Party accords to citizens or companies of any third country (Vietnam-Romania BIT, Vietnam-Australia BIT, Vietnam-Denmark BIT, Vietnam-China BIT, Vietnam-Bulgaria BIT, Vietnam-Poland BIT, Vietnam-Singapore BIT, Vietnam-Cuba BIT, Vietnam-Czech Republic BIT, Vietnam-Sweden BIT, Vietnam-Philippines BIT, Vietnam-Japan BIT, Vietnam-Netherlands BIT, Vietnam-Thailand BIT, Vietnam-Latvia BIT, Vietnam-Hungary BIT, Vietnam-Egypt BIT and Vietnam-United Kingdom BIT).

The Vietnam-United Kingdom BIT and Vietnam-Poland BIT further provide that when there are losses in the territory of the other Contracting Party resulting from the requisitioning of their property by its forces or authorities, or from the destruction of their property by its forces or authorities, which was not caused in combat action or was not required by the necessity of the situation shall be accorded restitution or adequate compensation. Resulting payments shall be freely transferable. The Vietnam-Egypt BIT and the Vietnam-Hungary BIT has a similar approach.

Under the Vietnam-Thailand BIT, the issue of large amounts of compensation was addressed, and it includes that in such cases, the transfers are to be effected in reasonable instalments.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Vietnam

Issue

Distinguishing features of the ‘expropriation’ standard

Conditions

The conditions that have been listed for expropriation, are largely similar across the Vietnamese BITs.

These may include expropriation for a public purpose, non-discrimination, and the need for an accompanying payment (of prompt, adequate and effective compensation) (Vietnam-Australia BIT, Vietnam-China BIT, Vietnam-Denmark BIT, Vietnam-Malaysia BIT, Vietnam-Latvia BIT, Vietnam-Bulgaria BIT, Vietnam-Romania BIT, Vietnam-Japan BIT, Vietnam-Singapore BIT, Vietnam-Hungary BIT, Vietnam-Sweden BIT and Vietnam-United Kingdom BIT).

The Vietnam-Bulgaria BIT further extends to include the transition of the investment to public property, positioning under public control, as well as any other deprivation or limitation of the property rights through sovereign measures which in their consequences are tantamount to expropriation

Compensation

Determination of values

Vietnamese BITs (such as the Vietnam-Egypt BIT and the Vietnam-Japan BIT) allow for compensation to be meted out when expropriation occurs. Commonly, this would be computed on the basis of the market value of the investment at varying stages. Under the terms of the Vietnam-Australia BIT, where that value cannot be readily ascertained, the compensation shall be determined in accordance with generally recognised principles of valuation and equitable principles taking into account the capital invested, depreciation, capital already repatriated, replacement value, currency exchange rate movements and other relevant factors. In the case of the Vietnam-Philippines BIT and the Vietnam-Latvia BIT, this loss would be the market value or in the absence thereof, the actual loss sustained immediately prior to the date the expropriation is announced or made public (the Vietnam-Czech Republic BIT has a similar provision). The Vietnam-Singapore BIT states that such payment of compensation shall, subject to the laws of each Contracting Party, be the value immediately before the expropriation, nationalization or measure having effect equivalent to nationalization or expropriation. The Vietnam-Denmark BIT provides for interests at LIBOR until the date of payment. The Vietnam-Cuba BIT has a similar approach with a provision for dispute resolution, if no agreement is reached on the compensation.

Time of payment

This compensation can either be paid at the time when expropriation is proclaimed (Vietnam-China BIT) or otherwise immediately before the expropriation or when an impending expropriation became public knowledge (examples include: Vietnam-Poland BIT, Vietnam-Australia BIT, Vietnam-United Kingdom BIT, Vietnam-Egypt BIT, Vietnam-Bulgaria BIT) (under the terms of the Vietnam-United Kingdom BIT, the earlier event shall apply).

Interest

There are also provisions stating that these shall include interest at a commercially reasonable rate / normal commercial rate from the date the measures were taken to the date of payment and shall be freely transferable between the territories of the Contracting Parties (Vietnam-Australia BIT, Vietnam-United Kingdom BIT). The Vietnam-Bulgaria BIT and the Vietnam-Latvia BIT, prescribe an annual rate of interest equal to 12 months LIBOR quoted for the currency in which the investments have been made until the time of payment. There is a further addition that any value reduction due to the fact that the impending expropriation has become public knowledge, shall not be taken into consideration when evaluating the amount of the compensation due. In the case of the Vietnam-Malaysia BIT, interest will be incurred if there is an unreasonable delay in payment.

Freely convertible and transferable

The payment of compensations shall be freely convertible and transferable.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Vietnam

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

Scope of most-favoured-nation treatment

The Vietnamese BITs provide that a Contracting Party shall at all times treat investments in its own territory on a basis no less favourable than that accorded to investments of nationals of any third country (Vietnam-Poland BIT, Vietnam-China BIT, Vietnam-India BIT, Vietnam-Denmark BIT, Vietnam-Latvia BIT, Vietnam-Australia BIT, Vietnam-Japan BIT, Vietnam-Bulgaria BIT, Vietnam-Singapore BIT, Vietnam-Malaysia BIT, Vietnam-Thailand BIT, Vietnam-Egypt BIT, Vietnam-Cuba BIT). The Vietnam-Thailand BIT goes further to provide that a Contracting Party may not be allowed to claim MFN treatment unless it agrees to accord the same by way of reciprocity. This reciprocal basis is also mentioned in the Vietnam-Romania BIT and the Vietnam-Netherlands BIT.

The Vietnam-Bulgaria BIT and several others (like the Vietnam-Denmark BIT, Vietnam-Czech Republic BIT, Vietnam-Denmark BIT, Vietnam-Egypt BIT and Vietnam-Philippines BIT), further provides that neither Contracting Party shall accord to investors of the other Contracting Party as regards maintenance, use and management if their investments in its territory, treatment less favourable than that accorded to investors of any third State

Common exceptions to most-favoured-nations treatment

The Vietnam-China BIT provides that the treatment shall not include any preferential treatment accorded by the Contracting State (or in some cases, to oblige the Contracting Party) to investments of investors of a third State based on customs, unions, free trade zone, economic union, agreement relating to avoidance of double taxation or for facilitating frontier trade.

Similar provision exists in the Vietnam-Australia BIT, Vietnam-Czech Republic BIT, Vietnam-Hungary BIT, Vietnam-United Kingdom BIT, Vietnam-Denmark BIT, Vietnam-Thailand BIT, Vietnam-Hungary BIT, Vietnam-Philippines BIT, Vietnam-India BIT, Vietnam-Latvia BIT, Vietnam-Malaysia BIT, Vietnam-Sweden BIT, Vietnam-Japan BIT, Vietnam-Cuba BIT and the Vietnam-Singapore BIT. The Vietnam-Egypt BIT includes provisions for ‘existing and future conventions’.

The Vietnam-Poland BIT and Vietnam-Bulgaria BIT are examples of BITs that further provide that a Contracting Party shall not be obliged to extend to investors/investments any treatment, preference or privilege resulting from any customs union, economic union, free trade area or regional economic integration agreement to which the Contracting Party belongs; or the provisions of a double taxation agreement with a third country.

National treatment

It is provided for that neither Contracting Party shall in its territory subject investments or returns of nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State (including Vietnam-United Kingdom BIT and Vietnam-Denmark BIT).

Agreements largely do not prevent a national of one Contracting Party from taking advantage of the provisions of any law or policy of, or contract with, the other Contracting Party which are more favourable than the provisions of this Agreement (Vietnam-Australia BIT).

Some BITs have provisions stating that neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their management, maintenance, use, enjoyment or disposal of their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State.

Non-conforming measures

An example of this is the Vietnam-United Kingdom BIT which provides that the Government of Vietnam may maintain in force those measures, provided for in Vietnamese Law at the date on which this Agreement was signed and set out in the Annex to this Agreement, as exceptions to the grant of treatment not less favourable than that accorded to its own companies or nationals. The Government of Vietnam may remove any such exception listed in the Annex to this Agreement by notifying the Government of the United Kingdom in writing. Accordingly, any such written notification by the Government of Vietnam shall have the immediate effect of amending the Annex to this Agreement.

Special advantages of any nationals with regards to any third State

The Vietnam-Netherlands BIT provides that if a Contracting Party bas accorded special advantages to nationals of any third State by virtue of agreements establishing customs unions, economic unions, monetary unions or similar institutions, or on the basis of interim agreements leading to such unions or institutions, that Contracting Party shall not be obliged to accord such advantages to nationals of the other Contracting Party.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Vietnam

Issue

Distinguishing features of the ‘protection and security’ standard

Scope / adequacy of protection

Generally, it has been provided that a Contracting Party shall, subject to its laws, accord within its territory protection and security to investments (Vietnam-Australia BIT, Vietnam-Romania BIT) and the Vietnam-United Kingdom BIT, Vietnam-Netherlands BIT and Vietnam-Netherlands BIT further provides that Contracting Parties shall enjoy ‘full protection and security’ in the territory of the other party (The Vietnam-Sweden BIT and the Vietnam-Japan BIT are similar). The Vietnam-Thailand BIT, provides for ‘the most constant protection and security under the law of the latter Contracting Party. The Vietnam-Czech Republic BIT provides that this protection shall be accorded at all times.

This might also include elements of favourability, for instance, the Vietnam-China BIT accords protection, which shall not be less favourable than that accorded to investments and activities associated with such investments of investors of a third state. It further states that the treatment and protection as mentioned shall not include any preferential treatment accorded by the other Contracting State to investments of investors of a third State.

The scope of protection under the Vietnam-Bulgaria BIT also extends the protection to reinvestment of returns from the investments. Providing that these reinvestments and their returns shall enjoy the same protection as the initial investments.

Customary International law on protection and security

The Vietnam-Thailand BIT has an explicit provision that states that each Contracting Party shall in its territory accord to nationals or companies of the other Contracting Part, as regards their assets, treatment that is fair and equitable, in conformity with the principles of international law.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Vietnam

Issue

Distinguishing features of any ‘umbrella clause’

 

N/A

9. What are the other most important substantive rights provided to qualifying investors in this country?

Vietnam

Issue

Other substantive protections

Transfer of payment

Amongst the Vietnamese BITs, it is mostly provided that Contracting Parties shall, when requested by a national of the other Contracting Party, and subject to its right in exceptional financial or economic circumstances to exercise equitably and in good faith powers conferred by its law, permit all funds of that national related to an investment in its territory and earnings and other assets of personnel engaged from abroad in connection with that investment, to be transferred freely and without unreasonable delay (Vietnam-Australia BIT, Vietnam-Thailand BIT, Vietnam-China BIT). The Vietnam-Romania BIT also has a further provision that mentions conformity with the Articles of Agreement of the International Monetary Fund.

Similar provisions also exist in the Vietnam-Poland BIT, Vietnam-Denmark BIT, Vietnam-Czech Republic BIT, Vietnam-Hungary BIT, Vietnam-Latvia BIT, Vietnam-Japan BIT, Vietnam-Malaysia BIT, Vietnam-Bulgaria BIT, Vietnam-Philippines BIT, Vietnam-Egypt BIT and the Vietnam-United Kingdom BIT (which does not provide a non-exhaustive list).

Non-nationals associated with the investment

Under the Vietnam-Sweden BIT, this free transfer of payment includes the earnings of non-nationals associated with the investment and the expenses connected with the management of the investment.

Examples of funds

Such funds may include, but are not limited to, the initial capital plus any additional capital used to maintain or expand the investment, returns, fees (including payments in connection with intellectual and industrial property rights), receipts from the whole or partial sale, divestment or liquidation of the investment, payments made pursuant to a loan agreement, and payments made for the losses (Vietnam-Australia BIT, Vietnam-China BIT). The examples cited in the Vietnam-Netherlands BIT, include funds necessary for the acquisition of raw or auxiliary materials, semi-fabricated or finished products or funds to replace capital assets in order to safeguard the continuity of an investment, additional funds necessary for the development of an investment, funds in repayment of loans, earnings of natural persons, and the proceeds of sale or liquidation of the investment.

Freely convertible currency

The transfers abroad of such funds and the earnings of personnel shall be permitted in freely convertible currency and shall be made at the exchange rate applying on the date of transfer in accordance with the law of the Contracting Party which has admitted the investment (Vietnam-Australia BIT, Vietnam-Cuba BIT Vietnam-China BIT, and the Vietnam-Egypt BIT). Most other BITs, like the Vietnam-Cuba BIT and the Vietnam-Poland BIT, are silent as to the issue of a freely convertible currency.

Reasonable instalments

Under the Vietnam-Thailand BIT, the issue of large amounts of compensation was addressed, and it includes that in such cases, the transfers are to be effected in reasonable instalments.

Delays in Transfer

The Vietnam-Japan BIT states that a Contracting Party may delay or prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to: (a) bankruptcy, insolvency or the protection of the rights of creditors; (b) issuing, trading or dealing in securities; (c) criminal or penal offenses; or (d) ensuring compliance with orders or judgments in adjudicatory proceedings.

Subrogation

If a Contracting Party or an agency of a Contracting Party makes a payment to a national of that Contracting Party under a guarantee, a contract of insurance or other form of indemnity it has granted in respect of an investment, the other Contracting Party shall recognise the transfer of any right or title in respect of such investment (Some examples include the Vietnam-Australia BIT, Vietnam-China BIT, Vietnam-Singapore BIT, Vietnam-Bulgaria BIT, Vietnam-Cuba BIT, Vietnam-Malaysia BIT, Vietnam-Romania BIT, Vietnam-Philippines BIT, Vietnam-Sweden BIT, Vietnam-Denmark BIT, Vietnam-Netherlands BIT, Vietnam-Egypt BIT).

In regard to subrogated rights or claims, the Vietnam-Poland BIT, Vietnam-Australia BIT, Vietnam-Hungary BIT, Vietnam-China BIT, Vietnam-Czech Republic BIT, Vietnam-Singapore BIT and Vietnam –Bulgaria BIT provide that these shall not be greater than the original right or claim of the national.

Rights

In addition, it is provided for under the Vietnam-Australia BIT, that where a Contracting Party has made a payment to its national and has taken over rights and claims of the national, that national shall not, unless authorised to act on behalf of the Contracting Party making the payment, pursue those rights and claims against the other Contracting Party. The Vietnam-Singapore BIT has a similar approach to the matter, and states that these payments would not affect the rights to make a claim. The Vietnam-Romania BIT furthers that Contracting Parties in dispute shall not, during dispute resolution procedures, assert as a defence its immunity or the fact that the investor has received compensation under an insurance contract covering the whole or part of the incurred damage or loss.

Rights of the first Contracting Party

These are comprehensively defined under the Vietnam-United Kingdom BIT which provides for the assignment to the first Contracting Party all the rights and claims of the party indemnified, and further provides that the first Contracting Party is entitled to exercise such rights and enforce such claims by virtue of subrogation, to the same extent as the party indemnified. The first Contracting Party is also entitled to the same treatment in respect of the rights and claims acquired by it, and any payments received, as the party indemnified was entitled to receive. Any payments received in non-convertible currency by the first Contracting Party in pursuance of the rights and claims acquired shall be freely available to the first Contracting Party for the purpose of meeting any expenditure incurred in the territory of the second Contracting Party. A similar approach is adopted in the under the Vietnam-Thailand BIT, which is rather less comprehensive.

Non-impairment

Generally, it has been provided that a Contracting Party shall, subject to its laws, accord within its territory protection and security to investments and shall not impair the management, maintenance, use, enjoyment or disposal of investments (i.e. Vietnam-Australia BIT and Vietnam-Netherlands BIT).

General exceptions

The Vietnam-Japan BIT allows for a Contracting Party to adopt or maintain measures (a) in the event of serious balance-of –payments and external financial difficulties or threat thereof; or (b) in cases where, in exceptional circumstances, movements of capital cause or threaten to cause serious difficulties for macroeconomic management, in particular, monetary and exchange rate policies.

Transparency

The Vietnam-Australia BIT calls for transparency of laws. It provides that each Contracting Party shall, with a view to promoting the understanding of its laws that pertain to or affect investments in its territory by nationals of the other Contracting Party, make such laws public and readily accessible.

Provision for diplomatic negotiations

The Vietnam-China BIT, Vietnam-Philippines BIT, Vietnam-Romania BIT, Vietnam-Singapore BIT and Vietnam-United Kingdom BIT allow Contracting States to settle any disputes concerning the interpretation or application of the BIT by consultation (and negotiations in the case of the Vietnam-Bulgaria BIT) through diplomatic channels, as far as possible. The Vietnam-Japan BIT has a similar provision.

Under the Vietnam-Australia BIT, neither Contracting Party shall pursue the dispute through diplomatic channels unless a decision has been made1 that the is no jurisdiction in relation to the dispute in question; or unless the other Contracting Party has failed to abide by or comply with any judgment, award, order or other determination made by the body in question. This non-pursuance is also included in the Vietnam-Philippines BIT, and would be in effect if the matter has been referred to arbitration.

There is also a mention of diplomatic negotiations in the Vietnam-Netherlands BIT and the Vietnam-Sweden BIT.

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Vietnam

Issue

Procedural Rights

Fork-in-the-road

Commonly, if disputes cannot be resolved after 3 or 6 months after the request of amicable settlement, the parties can choose between a competent court and an ad-hoc tribunal (Vietnam-Bulgaria BIT).

Disputes between Contracting Parties

Under the ambit of the Vietnam-Australia BIT, the Contracting Parties shall endeavour to resolve any dispute between them connected with this Agreement by prompt and friendly consultations and negotiations. If a dispute is not resolved within six months, it shall be submitted at the request of either Contracting Party to an Arbitral Tribunal.

Disputes between Contracting Parties and individuals

In the case of the Vietnam-Egypt BIT, the choice is between ICSID and an ad-hoc Court of Arbitration established under UNCITRAL Rules. This also applies for Vietnam-Sweden BIT, Vietnam-Hungary BIT and Vietnam-Netherlands BIT, if both Contracting Parties are Contracting States of the Convention. The Vietnam-Poland BIT provides a choice between the domestic court of the country in which the investment is made, and the ICSID, if the dispute cannot be settled within 6 months through negotiations. In addition to these two choices, the Vietnam-Czech Republic BIT, Vietnam-Romania BIT and Vietnam-Latvia BIT, have a further choice of an ad-hoc Tribunal following the UNCITRAL Rules. The Vietnam-Philippines BIT provides four choices, namely, a competent court, an ad-hoc tribunal, an existing tribunal and ICSID (if both are parties to the convention).

In reference to the Vietnam-Australia BIT, if the dispute in question cannot be resolved through consultations and negotiations, either party to the dispute may in accordance with the law of the Contracting Party which has admitted the investment, initiate proceedings before that Contracting Party’s competent judicial or administrative bodies. If both Contracting Parties are at that time party to the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, the dispute is to be referred to the ICSID for conciliation or arbitration. If both Contracting Parties are not at that time party to the Convention, or one party to the dispute has not consented to referring the dispute to the Centre, then it is to be refer to the/an arbitral authority. The Vietnam-Cuba BIT provides a varied fork-in-the-road approach in that the dispute resolution choices are either the competent arbitration court in the territory of the dispute or an ad-hoc UNCITRAL arbitration court.

In the case of the Vietnam-Singapore BIT, the slightly varied fork-in-the-road diverges to a UNCITRAL conciliation (with a conciliator appointed by each party) and a UNCITRAL arbitration. This is also the case for disputes between a Contracting Party and the Investor of another Contracting Party, under the terms of the Vietnam-Malaysia BIT.

ICSID or ad-hoc arbitration

ICSID or ad-hoc arbitration

The Vietnam-Australia BIT provides that if the dispute in question cannot be resolved through consultations and negotiations, either party to the dispute may initiate proceedings before that Contracting Party’s competent judicial or administrative bodies. If both Contracting Parties are at that time party to the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, the dispute is to be referred to the ICSID for conciliation or arbitration. If both Contracting Parties are not at that time party to the Convention, or if one party to the dispute has not consented to referring the dispute to the Centre, then it is to be referred to an arbitral authority. This is similar to the Vietnam-Romania BIT and Vietnam-Denmark BIT.

In some cases, if the disputes cannot otherwise be settled after 6 months, then it shall upon the request of both parties be refereed to ad-hoc arbitration2 (Vietnam-China BIT). The time frame under the Vietnam-United Kingdom BIT is 3 months, and the Contracting party may refer the dispute to ICSID or an international arbitrator or ad hoc arbitral tribunal (by an agreement between the parties to the dispute, or to be established under the UNCITRAL Arbitration Rules).

UNCITRAL Rules

If there is no agreement to one of the above alternative procedures, the parties to the dispute shall be bound to submit it to arbitration under the UNCITRAL Arbitration Rules. If a dispute between Contracting Parties cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal. Such an arbitral tribunal shall be constituted in a similar manner as provided for under the Vietnam-China BIT, and to a certain extent the Vietnam-Singapore BIT. The Vietnam-Netherlands BIT also provides for arbitration under the UNCITRAL Rules.

Disputes between Contracting Parties

Under the terms of the Vietnam-Singapore BIT, if disputes between Contracting Parties cannot be settled through diplomatic channels (or in the case of the Vietnam-Thailand BIT, consultation and negotiation) then it should be referred to arbitration, and the Tribunal shall establish its own rules of procedure. The Vietnam-Cuba BIT, Vietnam-Poland BIT, Vietnam-Czech Republic BIT, Vietnam-Hungary BIT, Vietnam-Denmark BIT, Vietnam-Malaysia BIT, Vietnam-Sweden BIT and the Vietnam-Egypt BIT have a similar approach.

Time limits

Generally, if a dispute is not resolved by consultations within four to six months of one Contracting Party seeking in writing such negotiations or consultations, the investor may submit the dispute to an Arbitral Tribunal (Vietnam-Australia BIT, Vietnam-Czech Republic BIT, Vietnam-China BIT, Vietnam-Latvia BIT, Vietnam-Poland BIT, Vietnam-Thailand BIT, Vietnam-Singapore BIT, Vietnam-Romania BIT, Vietnam-Sweden BIT and Vietnam-Egypt BIT). The timeframe accorded for this in the Vietnam-Romania BIT is 12 months after the beginning of the dispute.

Other BITs like the Vietnam-United Kingdom BIT, Vietnam-Japan BIT, Vietnam-Denmark BIT, and the Vietnam-Bulgaria BIT offer a time period of 3 months instead.

Access to courts

The Vietnam-Japan BIT expressly provides that each Contracting Party shall in its Area accord to

investors of the other Contracting Party treatment no less favourable than the treatment which it accords in like circumstances to its own investors or investors of any third country with respect to access to the courts of justice and administrative tribunals and agencies in all degrees of jurisdiction, both in pursuit and in defense of such investors’ rights.

Applicable laws

Applicability of local laws

The Vietnam-Singapore BIT provides that all investments shall be governed by the laws in force in the territory of the Contracting Party in which the investments are made. Under the Vietnam-Australia BIT, if there are disputes between nationals, the governing law would then be the local laws.

The Vietnam-Japan BIT provides that each Contracting Party shall promptly publish, or otherwise make publicly available, its laws, regulations, administrative procedures and administrative rulings and judicial decisions of general application as well as international agreements which pertain to or affect investment activities.

In some other instances, it has been provided for that if there is a dispute, the arbitral tribunal shall reach its decision on the basis of the national laws and regulations of the Contracting Party, the Agreement’s provisions, as well as the general principles of international law. These decisions shall be final and binding on the parties to the dispute and the Contracting Party shall execute the decision in accordance with its national legislation.

Selection of dispute settlement choice

For some settlement of disputes between nationals of the Contracting Parties, a Contracting Party shall in accordance with its law provide nationals of the other Contracting Party, who have made investments within its territory and personnel employed by them for activities associated with investments, full access to its competent judicial or administrative bodies in order to afford means of asserting claims and enforcing rights in respect of disputes with its own nationals. Nationals should also be permitted to select means of their choice to settle disputes relating to investments with the nationals of the other Contracting Party, including arbitration conducted in a third country, and the recognition and enforcement of any resulting judgments or awards.

Expropriation

Under the terms of the Vietnam-United Kingdom BIT, there are applicable laws where a review can be prompted, to be undertaken by a judicial or other independent authority of that Party. Additionally, in the case of a dispute, the arbitral tribunal shall reach its decisions on the basis of the domestic law of the Contracting Party in whose territory the investment in question is situated (including its rules on the conflict of laws) and the rules of international law (including this Agreement) as may be applicable. A similar approach is available in the Vietnam-Philippines BIT, Vietnam-Thailand BIT, Vietnam-Latvia BIT, Vietnam-Hungary BIT, Vietnam-Poland BIT, and Vietnam-Egypt BIT.

Transfer of Payments

During Transfers of Payments, a Contracting Party may protect the rights of creditors, or ensure the satisfaction of judgments in adjudicatory proceedings, through the equitable, non-discriminatory and good faith application of its law (Vietnam-Australia BIT).

Confidentiality

The Vietnamese BITs are mostly silent on the issue of confidentiality.

 

11. What is the status of this country’s investment treaties?

Vietnam

N/A

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Vietnam

Government entity to which claim notices are sent

None of the treaties stipulate to which government entity a dispute notice is to be served on. 

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Vietnam

Government department which manages investment treaty arbitrations

There is no publically available information on this query.

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Vietnam

Internal/external counsel

Vietnam has been represented by external counsel in investment treaty arbitration disputes. However, it is not known whether the state goes through a formal public procurement process in hiring the external counsel.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Vietnam

Washington Convention implementing legislation

Vietnam has not signed the Washington Convention.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Vietnam

New York Convention implementing legislation

Vietnam acceded to the New York Convention on 12 September 1995.

The national legislation of Vietnam ratifying the New York Convention is Decision No. 453/QD-CTN dated 28 July 1995 of the President of Vietnam.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Vietnam

Legislation governing non-ICSID arbitrations

The settlement of investment disputes by arbitration is addressed in the Law on Investment (No. 59/2005/QH11).

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Vietnam

Compliance with adverse awards

No publicly available awards have been rendered against Vietnam under its investment treaties.

19. Describe the national government’s attitude towards investment treaty arbitration

Vietnam

Attitude of government towards investment treaty arbitration

The Vietnamese government is favourable towards investment treaty arbitration having entered into more than 50 bilateral investment treaties with a majority of them containing investor-state arbitration provisions.3

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Vietnam

Attitude of local courts towards investment treaty arbitration

To date, the Vietnamese courts have not been called upon to enforce an investment treaty award against Vietnam. However, the Judge Council of the Supreme People’s Court of Vietnam has recently issued Resolution No. 01/2014/NQ-HDTP which guides the implementation of certain provisions of the Law of Commercial Arbitration (No.54/2010/QH12) and broadens the competence of the Vietnamese courts to facilitate dispute resolution through arbitration.

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Vietnam

National legislation

Substantive protections

Procedural rights

FET

Expropriation

Other

Local courts

Arbitration

Law on Investment (No. 59/2005/QH11)

Yes4

Expropriation only in cases of real necessity for the purpose of national defence and security and in national interest. Investors affected will receive compensation or be paid damages at market prices.5

No

Yes

Yes6

Law on Enterprise (No. 60/2005/QH11)

Yes 7

Expropriation only for essential reasons of national defence or security and in the national interest. Investors affected will be compensated at the market price. 8

No

Yes

Yes 9

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Vietnam

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

BITs

The main framework of protection for Vietnamese investors abroad is the net of bilateral investment treaties signed by the Vietnam.

MIGA

Vietnam is a member of the Multi Investment Guarantee Agency. An arm of the World Bank, MIGA insures cross-border investments made by investors in any MIGA member country into a developing member country.

 

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Vietnam

Awards

DialAsie v Socialist Republic of Vietnam UNCITRAL (award not publicly available)

Pending proceedings

RECOFI v Vietnam (UNCITRAL)

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Vietnam

‘Vietnam’ chapter in Jan Paulsson (ed), International Handbook on Commercial Arbitration (Kluwer Law International 1984)

Notes

1 The decision is to be undertaken by a relevant judicial or administrative body, the Secretary-General of the Centre, the arbitral authority or tribunal or the conciliation commission, as the case may be.

2 Such tribunal comprises of three arbitrators. Within two months from the date on which either Contracting State receives the written notice requesting for arbitration from the other Contracting State, each Contracting State shall appoint one arbitrator. Those two arbitrators shall within further two months, together select a third arbitrator who is a national of a third State which has diplomatic relations with both Contracting State. The third arbitrator shall be appointed by the two Contracting States as Chairman of the arbitral tribunal. If the arbitral tribunal has not been constituted within four months from the date of the receipt of the written notice for arbitration, either Contracting State may, in the absence of any other agreement, invite the President of the International Court of Justice to appoint the arbitrator(s) who has or have not yet been appointed. If the President is a national of either Contracting State or is otherwise prevented from discharging the said function, the next most senior member of the International Court of Justice who is not a national of either Contracting State shall be invited to make the necessary appointments). The arbitral tribunal shall determine its own procedure. The tribunal shall reach its award in accordance with the provisions of this Agreement and the principles of international law recognized by both Contracting States. The tribunal shall reach its award by a majority of votes. Such award shall be final and binding on both Contracting States. The ad hoc arbitral tribunal shall upon the request of either Contracting State, explain the reasons of its award. Each Contracting State shall bear the cost of its appointed arbitrator and of its representation in arbitral proceedings. The relevant costs of the Chairman and the tribunal shall be born in equal parts by the Contracting States.

3 Hew R Dundas and Dzungsrt & Associates LLC, National Report for Vietnam (2012), ICCA International Handbook on Commercial Arbitration (Kluwer Law International 1984, Supplement No. 70) at page 44.

4 Article 4(2) provides that ‘the State shall provide equal treatment before the law to all investors from all economic sectors, and as between domestic investment and foreign investment; and the State shall encourage and facilitate investment activities’.

5 Article 6(2) provides that ‘In a case of real necessity for the purpose of national defence and security and in the national interest, if the State acquires compulsorily or requisitions an asset of an investor, such investor shall be compensated or paid damages at the market prices at the time of announcement of such compulsory acquisition or requisition. Payment of compensation or damages must ensure the lawful interests of investors and be made on the basis of non-discrimination between investors’.

6 Article 12(1) provides that ‘any dispute relating to investment activities in Vietnam shall be resolved through negotiation and conciliation, or shall be referred to arbitration or to a court in accordance with law’.

7 Article 5(1) provides that the State shall recognise the long term existence and development of types of enterprise provided for in this Law, ensure the equality of enterprises before the law, regardless of their form of ownership and economic sector, recognise the lawful profit-making nature of business activities.

8 Article 5(3) provides that the lawful assets and investment capital of an enterprise and its owners shall not be nationalized or expropriated by administrative action. Where the State acquires or requisitions the assets of an enterprise for essential reasons of national defence or security and in the national interest, the enterprise shall be paid or or compensated at the market price determined at the time of declaration of the acquisition or requisition. The payment or compensation must ensure the interest of the enterprise without discrimination between forms of enterprise.

9 Article 8(11) provides that rights of enterprises includes the right to participate directly or via the authorized representative in legal proceedings in accordance with law. Article 143 provides that the owner of a private enterprise shall be the plaintiff, defendant or person having related rights and obligations in arbitration or court proceedings in disputes relating to the enterprise.

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