Investment treaty practice
Does the state have a model BIT?
Vietnam does not have a model bilateral investment treaty (BIT). The Ministry of Planning and Investment (MPI) is the agency in charge of negotiating BITs with foreign partners. Prior to the negotiation, MPI relies on the executed BITs to propose a draft BIT and consults with other ministries and agencies for comments. After taking comments from other ministries and state agencies, MPI will send this draft BIT to the foreign partner for their comments and prepare for the negotiation process.
Does the state have a central repository of treaty preparatory materials? Are such materials publicly available?
Vietnam does not have a public repository of treaty preparatory materials, but the Ministry of Foreign Affairs is the state agency responsible for restoring these materials and the concluded treaties, including BITs and regional treaties. MPI also publishes concluded BITs, but for only internal consultation.
Scope and coverage
What is the typical scope of coverage of investment treaties?
Most treaties concluded by the government of Vietnam provide conditions that investors must satisfy before they are granted investment permits or licences and registered under enterprise law. For example, the Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Treaty requires the covered investment to be established and admitted in accordance with the laws and regulations of each member state. This means that the investors only enjoy eligibility if their covered investment is legally established in accordance with the law. Some jurisdictions may request that the covered investment be in the form of either investment certification or enterprise registration. Vietnamese law provides that the covered investment that is invested by the foreign investor in the first instance needs to have both investment certification and enterprise registration.
What substantive protections are typically available?
Vietnam is a member of 70 BITs and seven regional investment treaties included as a chapter in free trade agreements, in which they provide substantive investment standards available to investors including expropriation, fair and equitable treatment, full protection and security and an umbrella clause. Standards of treatment provided under those treaties are also regulated by the 2020 Investment Law, creating a legal framework to protect the covered investment of foreign investors who are eligible under BITs.
What are the most commonly used dispute resolution options for investment disputes between foreign investors and your state?
The BITs and regional investment chapters set out mechanisms of settling disputes through amicable negotiation, domestic courts and arbitration. Most of the investment treaties to which Vietnam is a party provide settlement by arbitration through the ICSID Centre or the Additional Facility of the Centre and UNCITRAL rules. So far, the investors in almost all dispute cases against the government of Vietnam have invoked ad hoc arbitration under the UNCITRAL rules.
Does the state have an established practice of requiring confidentiality in investment arbitration?
Yes, investor-state dispute cases where Vietnam is a respondent are requested to be confidential.
Does the state have an investment insurance agency or programme?
This is a new policy, and the state agencies only propose measures as set out under Vietnamese law. Therefore, Vietnam does not have an investment insurance agency or programme for any possible disputes that arise under investment treaties to which it is a party.