Introduction:

On April 8th, 2020, the Prime Minister issued Decision No.14/2020/QD-TTg promulgating the Regulation on cooperation in international investment dispute resolution (“Decision 14”), which replaces the previous Decision No.04/2014/QD-TTg.

The content of Decision 14 includes the provisions on principles, tasks, jurisdiction and coordination processes between state agencies, relevant organizations and individuals involving in the international investment dispute settlement at international arbitration or other overseas tribunals.

Outstanding provisions:

1. Under Decision 14, the presiding authority is a Ministry, ministerial agency, Governmental agency or People’s Committee of a province or central-affiliated city (hereinafter referred to as “provincial People’s Committee”) that has a measure that a foreign investor claims against or threatens to claim against, except for the following cases:

  • The Ministry, ministerial agency, Governmental agency or provincial People’s Committee taking charge of signing or on behalf of the Government of Vietnam signing an agreement with a foreign investor is an authority presiding over resolution of the international investment dispute under such agreement;
  • The Ministry of Finance is the authority presiding over resolution of the international investment dispute that arises when a foreign investor makes a claim against the Government of Vietnam on the Government’s loan/debt or Government-backed loan/debt in accordance with regulations of law on public debt management; international investment dispute related to application of law on finance and tax; and
  • The Ministry of Justice shall request the Prime Minister to decide on a presiding authority in case where a complicated international investment dispute adversely affects foreign relations, security or national defense.

If the international investment dispute involves measures which a claim is made against two or more Ministries, ministerial agencies, Governmental agencies or provincial People’s Committees, these agencies shall reach a consensus on the presiding authority within 05 working days from the date of receipt of the notice of intent to claim.

2. The Government’s legal representative agency is an authority being a contact point that assists the Government and Prime Minister to unify the resolution of international investment disputes; compiles the list of legal experts for state agencies in dispute resolution; cooperates and assists the presiding authority in the jobs with respect to providing legal advice, formulating and implementing strategies, roadmaps for dispute resolution, complying with international arbitral awards and decisions.

3. Within 05 working days from the receipt of the notice of intent to claim or equivalent notice from the foreign investor with regard to an international investment dispute, the presiding authority shall send a notice enclosed with information and documents to the Government’s legal representative agency.

Accordingly, within 10 working days from the receipt of the official notice submitted by the foreign investor, the presiding authority shall cooperate with the Government’s legal representative agency, relevant organization or individual and cross-sectoral working group (if a cross-sectoral working group has been established) or lawyer (if available) in formulating an overall strategy to resolve the international investment dispute, which will be then submitted to the Prime Minister for approval.

4. In case where Vietnamese Government (or state agencies) has to or decides to provide compensation to the foreign investor, the presiding authority shall cooperate with the finance authority at the same level in submitting a compensation plan to the competent authority, assuring that the award, decision and relevant regulations of Vietnamese law are complied with.

This Decision will take effect from June 1st, 2020 and will apply to state agencies, relevant organizations and individuals involving in the international investment dispute settlement at international arbitration or other overseas tribunals. It will not apply to the settlement of claims regarding investment settled in Vietnamese arbitration, courts or agencies or organizations according to Vietnamese law.

If you have further questions regarding investment dispute or ISDS procedure, please contact our office.


DISCLAIMER

This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.