1.    General

1.1       Introduction to the draft law on cybersecurity;

Cybersecurity is a serious global concern which is indisputable. In the World Economic Forum’s Global Risk Report 2017, the category of “large cyber attacks” came in sixth among the risks likely to happen in the next ten years.

In Vietnam, the draft of the Law on Cyber Security (the “Draft”) – is a proposed piece of legislation that is expected to improve Vietnam’s cybersecurity, and has been placed on its website for public comment. In its submission, the Ministry of Public Security (“MOPS”) notes that Vietnam’s information network systems have suffered thousands of cyber attacks, losing billions of Vietnamese Dong annually. The Draft is divided into six chapters with 64 articles continuing on the scope, basic principles, cybersecurity policy, measures of cybersecurity.

1.2       An introduction to the practice in Vietnam and other countries regarding cyber security

In the area of cybersecurity, Singapore is the top-ranked country in the Asia – Pacific region. Singapore has a long history of cybersecurity initiatives, launching its first cybersecurity master plan back in 2005. The Cyber Security Agency of Singapore was created in 2015 as a dedicated entity to oversee cybersecurity, and issued a comprehensive strategy in 2016.[1]

International peers do not currently consider Vietnam as a safe Internet environment. Due to the high prevalence and adoption rate of new technologies, Vietnam has presently ranked the number-one most-attacked country in the world, with a malware encounter rate of over 40 percent – while the global average is 20 percent. Awareness levels in Vietnam are still low for both the general public and IT professionals since cybersecurity issues do not make headlines very often.

Since 1997, the number of internet users in Vietnam has dramatically surged to 45 million users in 2015. According to a survey in 2011, Internet has become the most popular media in Vietnam, exceeding newspaper and radio. Web surfing, portal access, and search engine usage are the three most popular online activities, accounting for 97%, 96% and 96% of the users respectively. Some users of social network rose from 41% in 2010 to 55% in 2011[2]. About 26 million Vietnamese access social networks from their mobile devices for two hours on average every day.

Along with the fast development of the internet, Vietnam has faced some risks relating to cyberattacks, controlling online information, Vietnam rates only 76th (out of 193 countries) in the Global Cybersecurity Index and 8th in ASEAN, ahead of Laos and Cambodia (but behind Myanmar). Vietnamese internet users are not sufficiently protected as is evidenced by the number of successful cyber attacks conducted against them[3]. According to statistics of the Organization for Economic Co-operation and Development (“OECD”), 95% of computers in Vietnam have been infected by viruses or Spyware with total damages up to 390,000 VND (18USD) for each computer per year. Currently, Vietnam ranks sixth out of ten countries with the highest number of cyber attacks. There are more than 68% companies/organizations which have leaked information, and are in danger of being cyberattacked, more than 30% of financial institutions and banks in Vietnam have become targets of cybercrime[4]. In 2016, Vietnam detected 135,190 cyber attacks, three times more than in 2015.

2. The impact of data localization toward big data & Artificial Intelligence capacity

2.1 The server is required to be localized within Vietnam’s territory

Article 34.4 of the Draft specifies: “Foreign firms providing telecommunication and Internet services in Vietnam shall comply with Vietnamese regulations, respect national sovereignty, interests and security, user interests, obtain licenses, locate their representative offices and servers in Vietnam, and secure user data and accounts…

This requirement has proven to be the most controversial in the past few days among the public in Vietnam. Many Vietnamese are concerned that Google, Facebook and other social media platforms, email providers, and cloud computing service providers will leave Vietnam’s market soon. However, “Internet services” in Article 34.4 are “a form of telecommunications services, including Internet access service and Internet connection services[5]” while Facebook, Google, other social media platforms is Social networking[6].

Therefore, Google, Facebook, other social media platforms, email providers, and cloud computing service providers are not the subject in this context.

2.2 The impact of data localization law toward big data & Artificial Intelligence capacity

Data localization refers to requirements to store and process data within a set of geographic boundaries. Governments may adopt data localization measures to safeguard data privacy or to promote the local digital industry.[7]

Requirements for data localizations or restrictions on the free flow of data have been made in recent years in countries such as Vietnam, Indonesia, Brunei, Iran, China, Brazil, India, Australia, Korea, Nigeria and, most recently, Russia[8].

One of the fundamental problems of complying with data localization laws for companies is Big data and Artificial intelligence.

Big data is “…data sets so large and complex that they are difficult to process using traditional ICT applications”.[9]

Artificial intelligence (“AI”) is “…the analysis of data to model some aspect of the world. Inferences from these models are then used to predict and anticipate possible future events[10]. AI learns from big data to respond intelligently to new data and adapt their outputs accordingly. AI is therefore ultimately about: “…giving computers behaviors which would be thought intelligent in human beings.”[11]

Hence, “Big data can be thought of as an asset that is difficult to exploit. AI can be seen as a key to unlocking the value of big data[12].

Big data, AI are found in a wide range of sectors including insurance, retail, transport which deliver promised benefits.

2.2.2 The impact of complying data localization laws for companies

In fact, a large proportion of big data is not personal (such as weather information, satellite imaging); However, some big data may include elements that link directly to a person which could be considered personal information (name, address, phone numbers, favorite). Even when this data has been aggregated and ‘pseudonymized’[13] to remove explicit identifiers, analytical techniques applied to huge datasets make it technically possible to ‘re-identify’ a person a large percentage of the time.[14] The risk is that the use of this big personal data can lead to surveillance, unwanted disclosure of private information and discriminatory profiling.

Therefore, the impact of complying data localization laws for companies is the difficulty in determining which categories of data need to be locally stored and which can be moved abroad and distinguishing personal data from non-personal data as purposes of data localization is still complicated.

Article 48 of the Draft provides, “all personal information and important data concerning national security shall be stored within the national territory of Vietnam. If someone wants to transfer such information overseas, then a security assessment shall be performed according to the related governmental agencies’ requirements”.

According to Article 48, data localization can apply to non-personal data, including both inherently non-personal data such as climate information, and data that has been aggregated or pseudonymized. Data localization can also result from regulations on the handling of data that act as barriers to the free flow of data, such as requirements to obtain the consent of data subjects, the rights of subjects to review data for accuracy, and legal obligations to notify security breaches.

For such reasons, data localization becomes a legal measure to protect the big data sources and the commitment of the data curators (including third parties to whom data may be transferred) to ensure misuse does not happen.

However, assessing the legal liability of foreign companies who do not have a business presence in a country, but may be handling large quantities of data of citizens in the course of regular day-to-day business transactions in the global marketplace is still a problem.

Furthermore, when companies are forced to relocate their servers to jurisdictions with low levels of internet security (such as Vietnam), concerns arise regarding possible breaches of consumer trust and privacy, which may invite further legal liability.

Finally, foreign companies are also worried about operating data centers in several authoritarian jurisdictions where state censorship and surveillance laws are over-encompassing and create significant liabilities for service providers.

2.2.3 Recommendations to the Government on the data localization regulation

From the discussion above, data localization regulation in the Draft might make data more vulnerable to both security attacks and natural disasters, because the data no longer undergoes sharding[15]. Particularly, in countries with poor IT security systems as Vietnam, data localization defeats the purpose of data protection. Therefore, enhancing the IT security system is a method that should be given top priority.

Further, the Government has the option of adopting alternative standards such as enforcing strict end-to-end encryption standards based on a recognized international standard, instead of imposing measures that restrict trade and innovation as data localization regulation while IT security systems in Vietnam are still poor.

3.  Possible claims against Vietnam in line with Investor-State Dispute settlement (“ISDS”) mechanisms under trade agreements

3.1 ISDS

ISDS is a neutral, international arbitration procedure.  Like other forms of commercial, labor, or judicial arbitration, ISDS seeks to provide an impartial, law-based approach to resolve conflicts.  Various types of ISDS are now a part of over 3,000 agreements worldwide, of which the United States is a party to 50.  Though ISDS is invoked as a catch-all term, there are a wide variety of differences in scope and process.

In the US, governments put ISDS in place for at least three reasons[16]:

  • To resolve investment conflicts without creating state-to-state strife
  • To protect citizens abroad
  • To signal to potential investors that the rule of law will be respected

3.2 Possible claims against Vietnam in line which ISDS mechanism under the trade agreements

Some proposals in the Draft by the Ministry of Public Security are not consistent with international commitments Vietnam has made.

For example Article 34.4 of the Draft specifies: “Foreign firms providing telecommunication and Internet services in Vietnam shall comply with Vietnamese regulations, respect national sovereignty, interests and security, user interests, obtain licenses, locate their representative offices and servers in Vietnam, and secure user data and accounts…”

The argument below will prove the inconsistency of the proposal with these international commitments that Vietnam commits itself to be a member.

3.2.1 WTO commitments on Telecommunication Services and EU – Vietnam Free Trade Agreement and its ISDS mechanism

According to the WTO Commitments on Telecommunication Services and EU – Vietnam Free Trade Agreement (“EVFTA”) commitments have specified the exception of Mode (1) Cross-border supply including Wire-based and mobile terrestrial services; Satellite-based services[17]. There is no mention of location of the representative offices in Vietnam of foreign telecommunication and Internet service providers.

 The discrepancies between the provisions of the Draft and Vietnam’s commitments to the EVFTA breaching the provisions of the EVFTA regulated by the ISDS mechanism therein. This mechanism is particular and different from other FTAs; it allows EU investors in Vietnam to sue State agencies if these agencies violate the EVFTA’s commitments in some clauses related to most-favored-nation treatment, which causes damage to investors[18].

Therefore, global service providers might claim against Vietnam in line with ISDS mechanisms under EVFTA.

Furthermore, the Draft conflicts with the country’s commitments as a member of WTO, which may result in raising a complaint under Article XXIII.1 GATT 1994[19].

3.2.2 Vietnam’s commitment to the Trans-Pacific Partnership (“TPP”) and its ISDS mechanism

According to the Location of Computing Facilities (Article 14.13) in the Electronic Commerce Chapter of TPP that Vietnam signed in February 2016, Vietnam shall not require a covered person to use or locate computing facilities in Vietnam’s territory as a condition for conducting business in Vietnam.

However, the requirement in Article 34.4 of the Draft on server location is against a commitment relating to Location of Computing Facilities (Article 14.13) in the TPP.

For this reason, if Vietnam breaches this TPP provision, the investor may directly make a claim in line with the ISDS mechanism under the TPP. The following alternatives are ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, the UNCITRAL Arbitration Rules; any other arbitral institution or any different arbitration rules[20].

3.3.3 The US-Vietnam Bilateral Trade Agreement (BTA) and its ISDS mechanism

According to the commitment of Vietnam on Telecommunication services – Mode (1) Cross-border supply: “Only through a business contract with Vietnamese gateway operators,” there is no requirement related to foreign Internet service providers to open representative offices in Vietnam[21].

Therefore, an investor can initiate legal proceedings against Vietnam by ISDS mechanism under the US-Vietnam BTA [22]which is significantly better defined and restricted than in other countries’ agreements.

4 Violation of Freedom of speech and expression under UN conventions which Vietnam has committed itself as a member

The Draft includes a number of prohibited acts, including:

  • The use of cyberspace to prejudice the national sovereignty, interests, and security, or the social order and safety.
  • Posts on cyberspace against the State of the Socialist Republic of Vietnam, prejudicial to the legitimate rights and interests of organizations or individuals, or contrary to the morality or customs and practices.
  • Unauthorized intrusions on or appropriations of information or documents.
  • Cyberattacks.
  • Cyberterrorism.

In addition, Items 2(d) and (đ) of Article 47, the Draft proposes that “websites or web portals hosting illegal cyber information may be subject to temporary suspension or withdrawal of operating licences if they contain information inciting mass gatherings that disturb security and order or that encourage anti-government activities”.

Also, the website/web portal operators would be asked to prevent the sharing of such illegal information and to remove the unlawful information within 24 hours. The Draft also allows the Vietnamese Government to ‘temporarily suspend, suspend, or withdraw the operating license of, the website or the web portal posting the information’ of any individual calling on:

  • “people to join a mass gathering that disturbs the security and order”;
  • posting information that is:
  • distorting a historical truth, negating a revolution achievement, or sabotaging the great national unity;
  • distorting or defaming the people’s government;
  • being any fabrication or causing any confusion among the people;
  • causing a psychological warfare, inciting an aggressive war, or causing enmities between nations and the people of countries;
  • propagating reactionary thoughts;
  • offending the nation, a famous person or national hero;
  • fabricating, spreading or dispersing what is apparently known to be false to offend human dignity or honor, or to embarrass or slander any organization or individual;
  • instructing or inciting any acts in violation of legislation;
  • prejudicial to the legitimate rights and interests of any organization or individual, or contrary to the morality or the fine customs and practices on cyberspace.

However, the inclusion of this list of prohibited acts confuses and dilutes the stated objective of cybersecurity. The Draft appears to allow cybersecurity legislation to be used as a reason for blocking and filtering of content when censoring and reporting those censored. Globally, cybersecurity does not include this type of activity.

The Draft would prohibit “the use of cyberspace” to engage in certain types of speech, including speech that “prejudices the national sovereignty, interests and security, or the social or and safety,” and “posts on cyberspace” that are against Vietnam’s Government or “contrary to the morality or the customs and practices” (“Prohibited Speech”) and as set out in Article 8(1-2).

The Draft provides examples of Prohibited Speech, including “distorting or defaming the people’s government,” “causing confusion among the people,” and “offending the nation, a famous person or national hero,” among other categories, as set out in Article 22(4). It further states that organizations and individuals may not “produce, post, store, or disperse” the Prohibited Speech as set out in Article 22(5).

Under Article 19(2) of the International Covenant on Civil and Political Rights, which Vietnam commits itself to be a member: “Everyone shall have the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers either orally, in writing or print, in the form of art, or through any other media….[23]

For such reasons, the proposal in the Draft is against a commitment relating to the International Covenant on Civil and Political Rights. It requires the global services providers have to “prevent the sharing of illegal information” which is against the “right to freedom of expression” in the form of “internet-based modes of expression.”

Therefore, the definition of this Draft’s content should be considered carefully. Limiting the definition of “cyberspace” to only public internet channels and defining the categories of prohibited speech narrowly to include only actual threats, such as terrorism, threats of violence, etc. will assist in the perception of this law as a whole security law and not for control of content.

5 Disadvantages to Vietnam

5.1. Consequences and claimable damages might occur to Vietnam under bilateral trade and investment protection agreements that Vietnam commits itself to be the member.

ISDS is a mechanism included in international investment agreements to ensure that commitments that countries have made to one another to protect mutual investments are respected.[24] ISDS provides foreign corporations broad substantive “rights” which means that Governments should not change regulatory policies once a foreign investment has been established[25]. Therefore, each bilateral trade agreement always has ISDS.

Based on the disputes that might occur between Vietnam and investors (global service companies or other countries) which were mentioned above, Vietnam might have to face the following consequences and damages.

Under the WTO legal framework, any violation of WTO may be challenged as follows:

  • Withdraw the measure found to be inconsistent with the (WTO) Agreement[26]
  • Bring inconsistent measure into conformity with WTO law[27]
  • Provide compensation under the agreement of the complainant[28]
  • Being imposed retaliatory countermeasures by other state members (suspension of obligations).[29]

“Compensation” could be paid for a share of the tribunal’s costs orders even when governments win cases. It is based on the “expected future profits.”[30]The average legal and arbitration costs for a claimant are including:

(1) The expense incurred by each party (investor and state – The largest cost component ) for their legal counsel and experts (about 82 % of the cost of an ISDS case);

(2) Arbitrator fees average about 16% of costs; and

(3) Institutional costs payable to organizations that administer the arbitration and provide secretariat are low, generally amounting to about 2% of the costs.

Breaching the provision in the bilateral trade agreement and investment protection agreements, Vietnam has to make a reservation or denunciation or withdrawal from a treaty[31]. However, these settlements are helping Vietnam to attract foreign investors who develop Vietnam’s economic. Therefore, Vietnam has to choose to either comply with the commitment in line with these agreements or breach the provisions.

Further, having disputes with the investor under ISDS and breaching those provisions which Vietnam commits itself to might affect Vietnam’s credit, which might cause difficulties in joining as a member of other treaties or signing other bilateral trade agreements with other countries in the future.

5.2 Economic and social development

The main drawback of data localization relates to economic benefits from digital trade.

The free flow of data is not only critical for information and communication technologies (ICT) services but of paramount importance to trade in goods and services in general[32]. This not only affects the global economy, but also countries that implement such measures, thus counteracting any potential policies to boost the local market[33].

Restrictions on cross-border data flows adversely impact countries which adopt such laws – for instance, in Indonesia, data localization laws could reduce GDP by 0.7 percent and reduce investments by 2.3 percent. Similar results were also recorded for South Korea and the EU[34]. As cross-border trade increasingly moves towards e-commerce and relies on the use of internet technologies such as cloud computing and big data, data localization policies pose a significant threat to the economy.

Therefore, Vietnam should note these disadvantages if the proposed Draft is approved.

The Draft would potentially impact the digital economy and the growth of internet services in Vietnam. The uncertainty and the potential liabilities imposed on internet service providers would tend to dampen innovation in the provision of internet services and, in the broader scale, the growth of the digital economy in Vietnam.

The requirements set out in Art. 34 of the Draft threaten to increase the costs of doing business in Vietnam, for both foreign and local enterprises. The increase data-processing costs negatively impact economic growth through higher prices on data services.

For foreign enterprises, the requirement to localize a server in Vietnam incurs more investment costs for facilities (cooling systems, servers, mechanical equipment and other infrastructure). Vietnam companies, in particular, will be more negatively impacted as they have lesser resources to do business

This regulation may restrict Vietnamese people in accessing approaching the internet, and then Vietnam may be left behind if technology is at a moderate level and not the same across the board.

For example, IBM Watson—combines a supercomputer, artificial intelligence (AI), and sophisticated analytical software using patient data for newer, quicker, and better health diagnosis.

However, health- data restrictions (because of the data localization law) prevent Watson’s AI applications to use data for health, weather forecasts, or others—which requires customized hardware to match the application. The restrictions of exchange personal medical data may lead citizens to miss the chance to access the latest and most-sophisticated medical services[35].

In addition, the Draft will directly affect domestic businesses providing a number of services of the fields relating to electronic commerce such as retail and aviation, because their booking and payment systems are currently using services from foreign companies. It will create enormous expense for Vietnam to establish a whole system which complies with all the regulations of the Draft to provide essential services.

The proposed Draft, if approved, could hinder the development of internet firms in Vietnam and Vietnamese users could lose opportunities to access quality services. Foreign service suppliers like Google, Facebook, Viber, Uber could refuse to establish a data center in Vietnam. The proposals will increase the unemployment rate in areas such as Marketing online, Search Engine Optimization (SEO), and Computer programming. Moreover, obstructing the development of education because learning through the internet has been an efficient way to learn, especially learning foreign languages (saving time, travel costs) as well as losing channel access to entertainment for Vietnamese.

6. Conclusion

The Draft law on Cybersecurity manages to solve several cybersecurity matters, but also raises some concerns that it may restrict economic and social development in Vietnam.

Moreover, the indicated rules are considered to conform with Vietnam’s commitments to international law regarding barriers to trade in services and human rights. It is recommended that the Draft should be carefully reviewed to consider the current global legal framework together with economic and social impacts, while keeping the cyber protection application scope.

[1] http://www.cyberguru.my/

[2] https://vi.wikipedia.org/wiki/Internet_t%E1%BA%A1i_Vi%E1%BB%87t_Nam

[3] In 1997, 1998, data in thousands PCs in Vietnam had been deleted by Date Virus.

   In 2005, there are many Government Website were attacked by Turkish hackers.

   In the first nine months of 2013, 1438 hacked cases were reported in Vietnam.

[4] http://www.netnam.vn/index.php/ko/tin-tuc/netnam-/51-tin-netnam/483-canh-bao-tinh-trang-an-ninh-mang-bao-dong-o-viet-nam.html

[5] Article 3(2) of Decree No. 72/2013/ND-CP dated July 15, 2013 on the management, provision, and use of Internet services and online information:

  1. Internet services are a form of telecommunications services, including Internet access service and Internet connection services:
  2. a) Internet access service is the services that allow Internet users to access the Internet;
  3. b) Internet connection service is the service that allows Internet service providers and telecommunications service providers to connect with each other to share Internet load.

[6] Article 3(22) of Decree No. 72/2013/ND-CP dated July 15, 2013 on the management, provision, and use of Internet services and online information:

22.Social networking site is a system of information that provides its users with services such as storage, provision, use, search, sharing, and exchange of information, including the provision of private websites, forums, online chats, audio and video sharing, and other similar services.

[7] http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/589801/EPRS_BRI(2016)589801_EN.pdf

[8] See Chander and Le, 2014; Castro and Mcquinn, 2015, Dhont and Woodcock, 2015; Svatesson, 2010).

[9]www.techopedia.com/definition/27745/big-dataMost definitions focus on three ‘V’ words. They describe big data as being large (i.e., they have ‘volume’); heterogeneous (i.e., they come from different sources in a ‘variety’ of different forms including unstructured data such as text and emails), and collected or analyzed in near real time (i.e., they exhibit high ‘velocity’)

[10] Government Office for Science. Artificial intelligence: opportunities and implications for the future of decision making. 9 November 2016.

[11] The Society for the Study of Artificial Intelligence and Simulation of Behaviour. What is Artificial Intelligence. AISB Website. http://www.aisb.org.uk/public-engagement/what-isai

[12] https://ico.org.uk/media/for-organisations/documents/2013559/big-data-ai-ml-and-data-protection.pdf

[13] Pseudonymization is processing such that personal data cannot be associated with a specific, identifiable person

[14] Researchers using 3 months of credit card transactions for a million users, or 15 months of mobile phone records for 1.5 million callers, showed that three or four data points were enough to uniquely identify users about 95% of the

time. See Ian Levy, quoted in De Prato, G.; J.-P. Simon (ed.), The next wave: ‘big data’?, Digiworld economic journal No 97 (2015), pp. 15-39.

[15] Heidt, Franz (2015). “The Harms of Forced Data Localization,” https://www.leviathansecurity.com/blog/the-harms-of-forced-data-localization/

[16] https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds

[17] WTO commitment on Telecommunication Services and Vietnam’s EVFTA commitment on Telecommunication Services – Mode (1) Cross-border supply:

None, except:

                Wire-based and mobile terrestrial services:  Service must be offered through commercial arrangements with an entity established in Viet Nam and licensed to provide international telecommunication services.

                Satellite-based services: Subject to commercial arrangements with Vietnamese international satellite service suppliers duly licensed in Viet Nam, except satellite-based services offered to:

                Upon accession: off-shore/on sea based business customers, government institutions, facilities-based service suppliers, radio and television broadcasters, official international organization’ representative offices, diplomatic representatives and consulates, high tech and software development parks who are licensed to use satellite-earth stations;

–               Three years after accession: multinational companies , which are licensed to use satellite-earth stations.”

[18] EVFTA, Chapter VIII, Investment part, Section 3 : Resolution of Investment Disputes,

[19] “Article XXIII: Nullification or Impairment

  1. If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of

(a)   the failure of another contracting party to carry out its obligations under this Agreement, or

(b)   the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or

(c)   the existence of any other situation,

the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.

…”

[20]Article 9.19: Submission of a Claim to Arbitration

1…If an investment dispute has not been resolved within six months…the claimant…may submit to arbitration…a claim.

  1. The claimant may submit a claim referred to in paragraph 1 under one of the following alternatives: (a) the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings, provided that both the respondent and the Party of the claimant are parties to the ICSID Convention; (b) the ICSID Additional Facility Rules, provided that either the respondent or the Party of the claimant is a party to the ICSID Convention; (c) the UNCITRAL Arbitration Rules; or (d) if the claimant and respondent agree, any other arbitral institution or any other arbitration rules.

…”

Art. 9.1: Definitions

claimant means an investor of a Party that is a party to an investment dispute with another Party…”

[21] US-VN BTA, Chapter 3, Annex G

[22] US-Vietnam BTA, Chapter IV. Development of investment relations, Article 4. Dispute Settlement

“…..

3.A…

(i) to the Centre, if both Parties are members of the ICSID Convention and the Centre is available; or

(ii) to the Additional Facility of the Centre, if the Additional Facility is available; or

(iii) in accordance with the UNCITRAL Arbitration Rules; or

(iv) if agreed by both parties to the dispute, to any other arbitration institution or in accordance with any other arbitration rules.

…..”

[23]Everyone shall have the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers either orally, in writing or in print, in the form of art, or through any other media. ” This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others. This regulation protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and internet-based modes of expression.”

[24] Investor-to-State Dispute Settlement (ISDS) Some facts and figures, European Commission

[25] See Lori Wallach, “Fair and Equitable Treatment” and Investors’ Reasonable Expectations: Rulings

in U.S. FTAs & BITs Demonstrate FET Definition Must be Narrowed,” Public Citizen memo, Sept. 5, 2012. http://www.citizen.org/documents/MST-Memo.pdfhttp://www.citizen.org/documents/MST-Memo.pdf.

[26] Article 3.7 of the Dispute Settlement Unit (DSU)

[27] Article 19.1 of the DSU

[28] Article 22 of the DSU

[29] Article 22 of the DSU

[30] Pia Eberhardt and Cecilia Olivet, “Profiting from Injustice,” Transnational Institute and Corporate Europe Observatory report, November 2012, at 7. http://www.tni.org/sites/www.tni.org/files/download/profitingfrominjustice.pdf.

[31] Article 2(17&18) the Law on Treaties, Law No. 108/2016/QH13 dated April 9, 2016

[32] Van-der Marel, 2015

[33] Ezell et al, 2013; McKinsey Global Institute, 2014; Donnan, 2014; Baeur et al, 2013; 2014; 2015

[34] Baeur et al, 2013; 2014; 2015

[35] https://diginomica.com/2017/05/03/data-localization-rules-damage-global-digital-economy-says-us-tech-thinktank/