Nguyen Manh Dzung and Nguyen Thi Thu Trang
Integration into the global market brings both challenges and opportunities for the Vietnamese legal system. As investment dispute prevention and settlement has not received much attention from the Vietnamese government, Vietnam experienced difficulties in dispute resolution when faced with investment claims. The reluctance to recognise and enforce foreign arbitral awards in Vietnam to protect local parties has resulted in a number of commercial disputes escalating into investment treaty claims. These experiences have, however, allowed Vietnam to identify defects in its legal framework, human resources and governance, and prompted the government to take measures to reduce the risk of being sued by foreign investors. Even though the effectiveness of these measures has not yet been proven, investment disputes have brought opportunities as well as challenges for Vietnam.
Recent trends in Philippine growth and fdi reveal only modest achievements, when compared with other asean countries, and little impact on income inequality. These outcomes are attributed to the policy of economic nationalism in the Philippines’ constitutional and legislative framework for fdi, whereby government reserves ‘strategic’ fields to Filipinos, while foreigners face hurdles in making investments. The account doubts whether foreign nationals can safeguard investments by recourse to Philippine bits as those reinforce economic nationalism by requiring fdi to comply with Philippine law. Poulsen’s observation that developing countries entered into bits oblivious of the risks does not seem applicable to the Philippines, which has deftly used bits to advance economic nationalism. Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course. The account concludes with proposals for future policy.
Sufian Jusoh, Muhammad Faliq Abd Razak and Mohamad Azim Mazlan
Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (isds) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised isds provisions: in mtd Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever isds claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency – the best defence against claims.
This chapter focuses on how the European Union-Singapore Free Trade Agreement (eusfta) illustrates the evolution of Singapore’s treaty practice. Singapore has abandoned the ‘old’, and has joined the bandwagon of next-generation ftas; yet, shrewdly, it is not fully convinced about the ‘new’ either. Singapore’s caution appears to be motivated by a pragmatic desire to avoid the pitfalls that these provisions could bring with them, as investor-State arbitration (isa) jurisprudence demonstrates, and to study the implications of a recent decision by the eu’s highest court regarding the fta which has delayed the agreement’s implementation. Indeed, Opinion 2/15 shows that while Singapore may have largely entertained isa as it stands, eu States are wary of the isa regime removing disputes from the jurisdiction of national courts. This chapter attempts to unpack the significance of the opinion, and concludes, inter alia, that the court’s findings on shared competence regarding dispute settlement may constitute a call for Europe and the world to consider dispute settlement modalities beyond investment arbitration.
In 2014, Indonesia began progressively to terminate the 67 bilateral investment treaties (bits) it has signed since the late 1960s. It does not appear to be Indonesia’s intention, however, to completely abandon investor-State dispute settlement (isds) and it is likely that isds provisions will be included in a number of new regional treaties being negotiated by Indonesia, including the Regional Comprehensive Economic Partnership. Contrary to Poulsen’s theory of ‘bounded rationality’ it is suggested that Indonesia was not completely ignorant of the implications when it negotiated its first bits in the 1960s, nor did it merely accept templates foisted upon it by the capital exporting countries of the West. Recent developments appear to confirm that, notwithstanding its decision to terminate its bits, Indonesia still considers it important that foreign investors are assured of some minimum standards of protection, governed by international law and backed by access to neutral international dispute resolution.
Luke Nottage and Sakda Thanitcul
Thailand was initially cautious with its bilateral investment treaties (bits), consistently eschewing investor-state dispute settlement (isds). From 1989 it began agreeing to isds, but only if both states were party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, which Thailand signed in 1965 but never ratified. From 1993, bits increasingly provided for ad hoc arbitration. Major disputes emerged from the 1990s instead under contracts with foreign investors containing arbitration clauses. From 2004 concession contracts required Cabinet pre-approval. This limitation was extended to all public contracts from 2009, after the first treaty-based isds award against Thailand, although two further claims have been filed recently. A 2002 Model bit was revised in 2013 to incorporate more pro-host-state provisions, but Thailand had net foreign direct investment (fdi) outflows in 2011 and still concludes treaties with isds. These patterns suggest ‘more than bounded’ rationality.