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Tài liệu Investor state dispute settlement on the fair and equitable treatment standard and lessons for vietnam

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MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS INVESTOR-STATE DISPUTE SETTLEMENT ON THE FAIR AND EQUITABLE TREATMENT STANDARD AND LESSONS FOR VIETNAM Major: International Economics Specialization: International Trade Policy and Law Code: 8310106 Full name: Truong Thi Kim Xuyen Supervisor: Dr. Vo Sy Manh Hanoi - 2019 ii Table of Contents STATEMENT OF AUTHORSHIP ..................................................................... V ACKNOWLEDGEMENTS ................................................................................ VI ABBREVIATIONS ........................................................................................... VII LIST OF FIGURES ............................................................................................ IX SUMMARY OF THESIS RESEARCH RESULTS ........................................... X ABSTRACT ........................................................................................................ XI INTRODUCTION ............................................................................................ XII 1. BACKGROUND OF THE STUDY.............................................................. XII 2. LITERATURE REVIEW ......................................................................... XIII 3. OBJECTS AND SCOPE OF THE STUDY .......................................... XVIII 4. OBJECTIVES OF THE STUDY .............................................................. XIX 5. METHODOLOGY OF THE STUDY ........................................................ XX 6. EXPECTED CONTRIBUTION OF THE THESIS................................... XX 7. STRUCTURE OF THE THESIS ............................................................... XX CHAPTER 1 AN OVERVIEW OF THE INVESTOR-STATE DISPUTE SETTLEMENT AND THE FAIR AND EQUITABLE TREATMENT STANDARD .......................................................................................................... 1 1.1 AN OVERVIEW OF INVESTOR-STATE DISPUTE SETTLEMENT .. 1 1.1.1 DEFINITION OF INVESTOR-STATE DISPUTE SETTLEMENT 1 1.1.2 THE SPECIFIC FEATURES OF INVESTOR-STATE DISPUTE SETTLEMENT 2 1.2 AN OVERVIEW OF FAIR AND EQUITABLE TREATMENT .............. 6 1.2.1 THE LITERAL MEANING OF FAIR AND EQUITABLE TREATMENT 1.2.2 SPECIFIC FEATURES OF FAIR AND EQUITABLE TREATMENT 6 9 SUMMARY ......................................................................................................... 11 CHAPTER 2 REGULATION AND APPLICATION OF THE FAIR AND EQUITABLE TREATMENT ............................................................................ 12 2.1 REGULATION OF FAIR AND EQUITABLE TREATMENT IN INTERNATIONAL INVESTMENT AGREEMENTS ..................................... 12 2.1.1 NO FAIR AND EQUITABLE TREATMENT STANDARD 2.1.2 FAIR AND EQUITABLE TREATMENT AS AN UNQUALIFIED STANDARD 2.1.2.1 Stand-alone Fair and Equitable Treatment Standard 14 14 14 iii 2.1.2.2 Fair and Equitable Treatment combined with other standards 15 2.1.2.3 FET standard with an open-ended list of State obligations 20 2.1.3 FAIR AND EQUITABLE TREATMENT AS A QUALIFIED STANDARD 21 2.1.3.1 Fair and Equitable Treatment with references to Minimum Standard of Treatment 21 2.1.3.2 Fair and Equitable Treatment with references to international law 22 2.1.3.3 Fair and Equitable Treatment with references to international law 22 2.1.3.4 Fair and Equitable Treatment with “exhaustive list” of State obligations 23 2.2 APPLICATION OF FAIR AND EQUITABLE TREATMENT BY ARBITRAL TRIBUNALS ................................................................................. 25 2.2.1 AN OVERVIEW OF FAIR AND EQUITABLE TREATMENT IN ARBITRAL TRIBUNALS 25 2.2.2 INTERPRETATION OF FAIR AND EQUITABLE TREATMENT STANDARD BY ARBITRAL TRIBUNALS 26 2.2.2.1 Interpretation of “No Fair and Equitable Treatment Clause” 26 2.2.2.2 Interpretation of Unqualified Fair and Equitable Treatment 28 2.2.2.3 Interpretation of the Qualified Fair and Equitable Treatment 34 2.3 FAIR AND EQUITABLE TREATMENT CASES OF VIETNAM ....... 37 2.3.1 2.3.2 2.3.3 2.3.4 MICHAEL LEE MCKENZIE V. THE SOCIALIST REPUBLIC OF VIETNAM DIALASIE SAS V. THE SOCIALIST REPUBLIC OF VIETNAM RECOFI V. THE SOCIALIST REPUBLIC OF VIETNAM TRINH VINH BINH V. THE SOCIALIST REPUBLIC OF VIETNAM 38 40 42 45 SUMMARY ......................................................................................................... 47 CHAPTER 3 INVESTOR-STATE DISPUTE SETTLEMENT ON THE FAIR AND EQUITABLE TREATMENT ON THE PERSPECTIVE OF THE HOST STATE AND LESSONS FOR VIETNAM GOVERNMENT........................... 50 3.1 THE REFORM OF THE FAIR AND EQUITABLE TREATMENT IN INTERNATIONAL INVESTMENT AGREEMENTS ..................................... 50 3.1.1 OPTIONS FOR REFORM OF THE FAIR AND EQUITABLE TREATMENT CLAUSE 51 3.1.1.1 The FET standard with reference to the minimum standard of treatment under customary international law 51 3.1.1.2 The Fair and Equitable Treatment clause with an open-ended list of obligations 53 3.1.1.3 The Fair and Equitable Treatment clause with an “exhaustive list” of obligations 54 iv 3.1.1.4 Omitting the FET clause 56 3.1.2 OTHER PROVISIONS LINKING TO FAIR AND EQUITABLE TREATMENT CLAUSE 57 3.1.2.1 Exception Provision 57 3.1.2.2 Most-Favoured Nation Treatment Provision 59 3.2 LESSONS FOR VIETNAM GOVERNMENT IN RESOLUTION OF INVESTOR-STATE DISPUTES ON THE FAIR AND EQUITABLE TREATMENT .................................................................................................... 61 3.2.1 THE CIRCUMSTANCES OF VIETNAM IN THE FAIR AND EQUITABLE TREATMENT CLAIMS 3.2.2 THE INVESTOR’S OBLIGATIONS IN THE FAIR AND EQUITABLE TREATMENT CLAIMS 62 63 3.3 LESSONS FOR VIETNAM GOVERNMENT IN PREVENTION OF INVESTOR-STATE DISPUTES ON THE FAIR AND EQUITABLE TREATMENT .................................................................................................... 66 SUMMARY ......................................................................................................... 68 CONCLUSION ................................................................................................... 70 BIBLIOGRAPHY ............................................................................................... 73 APPENDIX: LIST OF FORMULATIONS OF FET CLAUSES IN INTERNATIONAL INVESTMENT AGREEMENTS OF VIETNAM ........... 82 A. LIST OF FORMULATIONS OF FET CLAUSES IN BILATERAL INVESTMENT TREATIES OF VIETNAM 82 B. LIST OF FORMULATIONS OF FET CLAUSES IN TREATIES WITH INVESTMENT PROVISIONS OF VIETNAM 86 v STATEMENT OF AUTHORSHIP I, Truong Thi Kim Xuyen hereby declare, in fulfilment of the requirements of the Foreign Trade University that the thesis is my original work under the supervision of Dr. Vo Sy Manh. vi ACKNOWLEDGEMENTS Firstly, I would like to express my gratitude to my supervisor Dr. Vo Sy Manh who gives me guidance, support and encouragement to complete this thesis. Secondly, I am also grateful to the Foreign Trade University for providing a wonderful environment for whole my period time of study. Finally, a special thanks goes to Dr. Cao Thi Hong Vinh for all her prompt and enthusiastic responses and support during my course. vii ABBREVIATIONS AANZFTA ASEAN-Australia-New Zealand Free Trade Agreement ACIA ASEAN Comprehensive Investment Agreement ASEAN Association of Southeast Asian Nations BIT Bilateral Investment Treaty CBDR Common but Differentiated Responsibility CIL Customary International Law COMESA Common Market for Eastern and Southern Africa CPTPP Comprehensive and Progressive Agreement for Trans-Pacific Partnership DPI Department of Planning and Investment ECJ European Court of Justice ECT Energy Charter Treaty FCN Friendship, Commerce and Navigation FDI Foreign Direct Investment FET Fair and Equitable Treatment FPS Full Protection and Security FTA Free Trade Agreement GATT General Agreement on Trade and Tariffs ICJ International Court of Justice ICSID International Center for Settlement of Investment Disputes IIA International Investment Agreement IMS International Minimum Standard IPA Investment Protection Agreement viii ISDS Investor-State Dispute Settlement LCIA London Court of International Arbitratio MFN Most-Favoured Nation Treatment MPI Ministry of Planning and Investment MST Minimum Standard of Treatment NAFTA North American Free Trade Agreement NT National Treatment OECD Organization for Economic Cooperation and Development PCA Permanent Court of Arbitration SCC Stockholm Chamber of Commerce SFC South Fork Company SFT Swiss Federal Tribunal SPC Supreme People’s Court TIP Treaty with Investment Provision UNCITRAL United Nations Commission on International Trade Law UNCTAD United Nations Conference on Trade and Development VIAC Vietnam International Arbitration Center WTO World Trade Organization ix LIST OF FIGURES 1 Figure 1.1 Known ISDS cases filed by arbitral rules, from 1987 to 31 July 2017 (Per cent) 4 Number and share of BITs with unqualified, 2 Figure 2.1 qualified and no FET clause, signed between 1959 and 2016 13 x SUMMARY OF THESIS RESEARCH RESULTS Being an attractive investment destination with a huge number of international investment agreements (IIAs) signed with other member states, apart from the economic benefits achieved, Vietnam has to face more legal risks arising from the claims of foreign investors on the ground of the IIAs, and one of the most concern is the breach of FET clause. The study provides the legal risks arising from the unqualified FET clauses in most IIAs of Vietnam. To have such conclusion, the research firstly examines the formulations of the FET in IIAs and then make a comparison between the thresholds of investors’ protection regarding to these formulations. The study also examines the investor-state dispute settlement (ISDS) cases on the FET claims, specifically four cases in which Vietnam government was a respondent and the provides the elements that Vietnam government should take them into account when being sued by the foreign investors on the ground of the FET standard. The thesis also goes further by analyzing the reform of FET clauses in new-generation IIAs which is one of the most important goals in World Investment Forum in 2018. As a result, the study then argues the advantages and disadvantage of each formulation of FET so that Vietnam government can easily make a comparison and consideration between these formulations of FET when it comes to negotiating and signing new IIAs. Last but not least, the study provides the Vietnamese authorities lessons and recommendations for better practice in prevention the disputes with foreign investors regarding to FET claims as well. xi ABSTRACT Fair and equitable treatment (FET) as an international investment treatment standard, has been incorporated in most international investment agreements. According to UNCTAD’s IIA Mapping database, which includes over 2500 mapped BITs (UNCTAD 2016), there are only 117 BITs with no FET clauses out of 2538 BITs signed between 1959 and 2016. The standard, however, as interpreted by investorstate arbitration tribunals, is an ambiguous, imprecise and unclear obligation that turns it into a “catch-all” provision. FET is therefore frequently invoked by investors in investor – state arbitration that the awards sometimes cost for billions of dollars. For these reasons, it is time for the government to pay more attention to this standard, especially developing country as Vietnam. As a small contribution, the thesis attemps to find the best approach for Vietnam government when it comes to sign a new IIA in order to balance the interest between the state and foreign invertors as well as analyzing the legal problems that Vietnam government should handle to minimize the violation of FET clause. Moreover, the thesis desires to give some recommendations for Vietnam government when it comes to be a respondent with a claim on the FET clause during the hearing of investment arbitral tribunal. INTRODUCTION 1. Background of the study According to United Nations Conference on Trade and Development (UNCTAD) (UNCTAD 2018) as of 2018, Vietnam has signed about 65 Bilateral Investment Treaties and 26 Treaties with Investment Provisions (hereinafter collectively referred to as the International Investment Agreements- IIAs). It should be noted that in most of the IIAs that Vietnam has signed such as the ASEAN Comprehensive Investment Agreement (ACIA), the Comprehensive and Progressive Agreement for TransPacific Partnership (CPTPP), the Agreement on Investment among the Governments of the Hong Kong Special Administrative Region of the People’s Republic of China and the Member States of the Association of Southeast Asian Nations, KoreaVietnam Bilateral Investment Agreement and France - Vietnam Bilateral Investment Agreement or others like the EU-Vietnam Free Trade Agreement and the Regional Comprehensive Economic Partnership that Vietnam has been negotiating and shall sign as a member in the near future, they all include the standard of fair and equitable treatment (FET). Being an attractive investment destination with a huge amount of IIAs signed with other member states, apart from the economic benefits achieved, Vietnam has to face more legal risks arising from the claims of foreign investors on the ground of the IIAs, and one of the most concern is the breach of FET clause since this standard is commonly regulated in unqualified way (which shall be discussed further in Chapter II). In practice, Vietnam’s law, particularly foreign investment law, treats foreign investors fairly and equitably; however, in practice State authorities, when applying the law, have not fully accorded such treatment in administrative and court proceedings (Tuan 2016, p.288). As a result, the government of Vietnam could be sued in the international arbitral tribunals where the awards can cost billions of dollars (as in the case between Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of xiii Ecuador, ICSID Case No. ARB/06/11, in 2012, the arbitration award is roundly equal to 1.77 billion USD). Because of the increase of ISDS in both scale and severity, specially the ISDS on FET clauses, the author attemps to find the best approach for Vietnam government when it comes to negotiation of a new IIA in order to balance the interests between the state and foreign invertors as well as analyzing the legal problems that Vietnam government should handle to minimize the violation of FET clause. Moreover, regarding to the ISDS, the author would like to give some lessons for Vietnam government when being sued before the arbitral tribunals in a dispute related to the FET clause. 2. Literature review Due to the fact that FET is controversial topic in international investment law, there are a large number of foreign authors and scholars writing about this topic. In general, the FET standard can be analyzed from the historical background to the definition1 as well as the arbitral practice on the FET claim2 while the others address the balance of 1 See more in: (1) Abhijit P.G. Pandya, Interpretations and Coherence of the Fair and Equitable Treatment Standard in Investment Treaty Arbitration, Ph.D thesis in Law, London School of Economics, London in 2011; (2) D. Hauksdóttir, The Fair and Equitable Treatment Standard in International Investment Treaties, Master thesis in Law, Reykjavík University, Reykjavík in 2015; (3) Deng Ting Ting, The impact of the Fair and Equitable Treatment Standard on State Sovereignty, Ph.D thesis in Juridical Science, City University of Hong Kong, Hong Kong in 2012; (4) Julien Fouret, The notion of Fair and Equitable treatment, Master thesis in Law, McGill University, Montreal in 2003; (5) J. Roman Picherack, The Expanding Scope of the Fair and Equitable Treatment Standard: Have Recent Tribunals Gone Too Far?, Journal of World Investment & Trade, Vol. 9, Issue 4, 2008. 2 See more in (1) Fulvio Maria Palombino, Fair and Equitable Treatment and the Fabric of General Principles, T.M.C. Asser Press, The Hague and Springer-Verlag, Berlin Heidelberg, 2018; (2) Ioana Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment, Oxford University Press, 2007; (3) Roland Klager, Fair and Equitable Treatment in International Investment Law, Cambridge University Press, 2011; (4) Marc Jacob & Stephan Schill, Fair and Equitable Treatment: Content, Practice, Method, ACIL Research Paper 2017-20, 2017; (5) OECD, Fair and Equitable Treatment Standard in International Investment Law, 2004; (6) Rudoff Dolzer, Fair and Equitable Treatment: A Key Standard in Investment Treaties, The International Lawyer Vol. 39, 2005; (7) Thomas J. Westcott, Recent Practice on Fair and Equitable Treatment, The Journal of World Investment & Trade, Vol. 8, Issue 3, 2007; (8) UNCTAD, Fair and Equitable Treatment: UNCTAD Series on Issues in International Investment Agreement II – A Sequel, 2012. xiv the rights between the investors and the host states.3 More specifically, there are so many studies focusing on the formulations of the FET standard. According to one of the earliest studies about the FET of the OECD in 2004 (OECD 2004), there are three main formulations of the FET, which are: - FET is linked to the international minimum standard required by customary international law; - FET is linked to the international law including all sources; - FET is an independent self-contained treaty standard. The sequent study of UNCTAD in Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking (UNCTAD 2007, pp.30-33) grouped FET into seven formulations: - Treaties that grant investments fair and equitable treatment without making any reference to international law or to any other criteria to determine the content of the standard. - Treaties that state that investments will receive fair and equitable treatment no less favourable than accorded to its own investors or to investors of any third State. - Treaties that couple the fair and equitable treatment standard with an obligation to abstain from impairing the investment through unreasonable or discriminatory measures. - Treaties that require investments to be granted “fair and equitable treatment in accordance with the principles of international law”. 3 As in (1) Rumana Islam, The Fair and Equitable Treatment (FET) Standard in International Investment Arbitration: Developing Countries in Context, Springer, Singapore, 2018; (2) Gaukrodger D., “Addressing the balance of interests in investment treaties: The limitation of fair and equitable treatment provisions to the minimum standard of treatment under customary international law”, OECD Working Papers on International Investment 2017, OECD Publishing, Paris, 2017; (3) Graham Mayeda, Playing Fair: The Meaning of Fair and Equitable Treatment in Bilateral Investment Treaties, Journal of World Trade, Vol. 41, No. 2, 2007; (4) Srilal M. Perera, Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons from the Argentine Investment Disputes – Part I & Part II, The Journal of World Investment & Trade Vol. 13, Issue 3, 2012; (5) Om Krishna Shrestha, A Host State Regulatory Right in Fair and Equitable Treatment (FET) in Bilateral Investment Treaties (BITs), Master thesis in Law, University of Lapland, Rovaniemi in 2016. xv - Treaties that similarly require fair and equitable treatment in accordance with the principles of international law, but that in addition expressly identify some requirements of the standard. These specific inclusions may broaden the scope of the standard. - Treaties that make the fair and equitable treatment standard contingent on the domestic legislation of the host country. - Finally, some recent BITs and free trade agreements provide a more precisely defined scope of the fair and equitable treatment standard. They oblige the contracting parties to accord covered investments treatment in accordance with the minimum standard of treatment under customary international law. Some also make it express that fair and equitable treatment is part of the minimum standard and does not create additional substantive rights. In a survey of I.Tuona, she classified FET into five formulations (I.Tuona 2008, p.22): - In the first one, the standard appears alone; - In the second one, together with the FET, there is a reference to international law; - In the third one, besides the reference to the FET standard, the States give examples of concrete acts that amount, in their view, to a breach of the FET standard and of international law, - In the fourth one the standard is referred to jointly with the notions of arbitrariness and discrimination and - In the fifth one, the standard appears next to the “full protection and security” clause. According to other study of UNCTAD (UNCTAD 2012): The most important and widespread approaches to the FET standard in treaty practice are the following: - No FET obligation; - FET without any reference to international law or any further criteria (referred to as unqualified, autonomous or self-standing FET standard) - FET linked to international law; xvi - FET linked to the minimum standard of treatment of aliens under customary international law; - FET with additional substantive content (denial of justice, unreasonable/discriminatory measures, breach of other treaty obligations, accounting for the level of development). Moreover, in a book of Roland (R.Kläger 2011), the FET was categorized as three main type in IIAs. The first one is “no reference to fair and equitable treatment”, the second one is “hortatory references to fair and equitable treatment” and last one is “legally binding references to fair and equitable treatment.” In “legally binding references to fair and equitable treatment”, there are five different formulations can be found as follow: - Fair and equitable treatment in combination with other standards; - Fair and equitable treatment combined with a reference to general international law; - Fair and equitable treatment combined with a reference to customary international law; - Fair and equitable treatment contingent on domestic law. Also about FET, Rumana Islam has other idea by listing FET into three main types namely: FET minus, simple FET and FET plus (Islam 2014). - FET minus - which refers to those treaties where treaty framers have connected the definition of the standard to other concepts that define, and appear to limit its scope. The FET standard then simply means the standard which international law or customary international law guarantees for aliens (Islam 2014, p.62) or [t]his appears to be a clear way of limiting the scope of the FET. The denial of justice in administrative or legal proceedings is clearly narrowing the obligation. The FET clause then only relates to judicial or quasi-judicial processes. Clauses like this therefore can potentially provide much clearer limits to the scope of the FET than invocation of international law or customary international law (Islam 2014, p.77).4 4 The FET standard then simply means the standard which international law or customary international law guarantees for aliens. (p.62) Or [t]his appears to be a clear way of limiting the scope of the FET. The denial of justice in administrative or legal proceedings is clearly narrowing the obligation. The FET clause then only relates to judicial or quasi-judicial xvii - Simple FET where the FET clause is formulated without any reference to international law, customary international law, or any other limitation.5 The second category of treaties stipulate FET without any reference to international law, customary international law, or any other limitation, thereby implying that FET in these treaties is an unqualified, autonomous, and separate standard. - FET plus – which refers to treaties which combine the FET standard with an additional substantive obligation, such as full protection and security, prohibition of denial of justice, prohibition of arbitrary or discriminatory measures, obligations of MFN, or guarantee of protection and security. The notions of arbitrariness, unreasonableness, and discrimination are understood as inherent to the FET standard. Therefore, it appears that such clauses give further substance to the otherwise general wording of the standard.6 In Vietnam, there are some studies examining the FET clause as follow: - Hanoi Law University, Textbook on International Investment Law, Youth Publishing House, 2017; (2) Trinh Thi Hai Yen, Textbook on International Investment Law, National Political Publishing House, 2017. - Nguyen Phuong Dung, The Fair and Equitable Treatment Standard in Investor-State Arbitration in Vietnam, International Arbitration Asia, 2016. - Nguyen Quoc Tri, The principles of investor treatment in Comprehensive and Progressive Agreement for Trans-Pacific Partnership, Journal of Democracy and Law, 2018. - Nguyen Thu Huong, Investment policy under the Vietnam-EU Free Trade Agreement (EVFTA), Institute of State and Law, 2018. However, it should be noted that in most of those studies, FET standard is merely analyzed as a principle among other principles of investment law. processes. Clauses like this therefore can potentially provide much clearer limits to the scope of the FET than invocation of international law or customary international law (R.Islam 2014, p.77). 5 The second category of treaties stipulate FET without any reference to international law, customary international law, or any other limitation, thereby implying that FET in these treaties is an unqualified, autonomous, and separate standard. 6 Fair and Equitable Treatment, UNCTAD Series on Issues in International Investment Agreements Vol. II (n 42) 31. xviii It also can be found the Ph.D thesis related to FET as follows: Nguyen Van Tuan, The Protection of the Fair and Equitable Treatment Standard under International Investment Law: A Case Study of Vietnam, Ph.D thesis in Philosophy, La Trobe University, Victoria in 2016. According to Dr. Nguyen Van Tuan (Tuan 2016), FET in IIAs can be classified as two main types: no FET Standard in IIAs and FET Standard in IIAs. The second type includes six main formulations: - FET in Preambles - FET as an Unqualified Clause - FET with Reference to International Law - FET Linked to the Minimum Standard of Treatment under Customary International Law - FET Linked to Full Protection and Security - FET Linked with Other Investment Standards In comparison with other studies, my thesis has followed different approach by broadly grouping IIAs into three categories as follow: the IIAs with no FET clause, the IIAs with unqualified FET clause and the IIAs with qualified FET clause. In every category, I will clearly state the main language utilized in the IIAs and illustrate how it is interpreted by the arbitral tribunals in practice. Moreover, by carefully analyzing the negative and positive effects of each type, I will suggest the superior formulation of each category in the perspective of Vietnam government when it comes to draft new IIAs. In my opinion, it is quite a crucial issue since it has also linked to the sustainable development and the reform of new generation IIAs; however, in Vietnam it has not received adequate attention. 3. Objects and Scope of the study The thesis aims to provide the understanding of FET through its historical background. The thesis also describes the regulation of FET in IIAs as well as its application in arbitral tribunal. xix The study focuses on the formulations of FET in the IIAs in which Vietnam is a member, in some cases, specific IIAs such as the North American Free Trade Agreement (NAFTA) or the new generation of the IIAs shall be invoked to analyze the new approach of FET in the reform IIAs regarding to FET clauses. The thesis does not aim to analyze the relation between the FET standard and other standards since this issue has been carefully studied7 but merely expressing how these standards could be regulated together in treaties practice. Moreover, merely the ISDS cases of Vietnam regarding to FET claims shall be carefully studied in the thesis. The thesis has been conducted from September 2018 to February 2019. However, the data and information have been collected in various periods of time, not merely in 2018 and 2019 (for instance, the survey conducted in 2008 by Tudor or the mapping of BITs carried out in 2016 by UNCTAD.) 4. Objectives of the study Through the analysis, the study figures out the reasonable way to regulate the FET standard so that the Vietnam government can limit the disputes at the very beginning by setting a threshold of investors’s protection. In addition, according to the elements that investors frequently utilize to claim the states for the breach of FET clause, the author consumes the features of Vietnamese law, domestic court as well as administrative proceedings should improve to ensure fair and equitable treatment for investors and their invesments in the territory of Vietnam. In particular, the study also attempts to highlight some lessons learned from other countries during the hearing of arbitral tribunal so that Vietnam government can consider these lessons in case being sued by foreign investors on the ground of FET clauses. 7 See more R.Islam, Interplay between Fair and Equitable Treatment (FET) Standard and other Investment Protection Standards Bangladesh Journal of Law, Vol. 14 Nos. 1&2, pp. 117-142, 2014; and Roland Klager, Fair and Equitable Treatment in International Investment Law, Cambridge University Press, 2011. xx 5. Methodology of the study To carry out the study, the author combines the method of synthesizing information and using the statistics to compare, analyze and clarify the problems. Moreover, the author also incorporates investment dispute cases to clarify theoretical issues. To be more specific, in Chapter 1, the thesis uses legal analysis to examine provisions regarding to investor-state dispute settlement and the FET clauses in international investment. In chapter 2, cases will be examined to interpret the meaning of the FET standard in practice. Moreover, the thesis also analyze investor-state cases in which Vietnam has been a respondent. Last but not least, in chapter 3, by comparing the advantages and disadvantages between different formulations of the FET standard, the thesis suggests the lists of FET clauses that can be used to negotiate in the future international investment agreements. 6. Expected contribution of the thesis The thesis could become one of reference sources for further research of the FET standard in Vietnam. In particular, Vietnamese authorities can use the information and recommendations in the thesis for having superior practice when tackling the disputes with foreign investors, specially the disputes related to the FET clause. 7. Structure of the thesis Chapter 1 An overview of Investor - State Dispute Settlement and Fair and Equitable Treatment This chapter aims to provide the overview of Investor-State Dispute Settlement (ISDS) mechanism and specifically, the ISDS in Vietnam before analyzing the historical background of FET and its literal meaning. Chapter 2 Standard Regulation and Application on Fair and Equitable Treatment
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