Investment Protection Agreements Research Articles

Article: German Federal Supreme Court Declares Intra-EU Investor-State ICSID Arbitration Inadmissible

In 2018, the Court of Justice of the European Union (CJEU) declared arbitration clauses in intra-EU bilateral investment treaties (BITs) incompatible with EU law, extending this ruling to multilateral investment protection agreements such as the Energy Charter Treaty (ECT) in 2021. Section 1032 II German Code of Civil Procedure (ZPO), a provision solely known to German law, allows for the invalidation of arbitration agreements even before the stage of enforcement. The Netherlands and Germany sought to apply this provision to intra-EU International Centre for Settlement of Investment Disputes (ICSID) arbitrations, resulting in conflicting decisions by the Higher Regional Court Cologne and the Court of Appeal Berlin. On 27 July 2023, the German Federal Supreme Court affirmed the inadmissibility of the intra-EU investor-state arbitrations at ICSID, aligning with the previous decisions of the Higher Regional Court Cologne and the CJEU. Among other considerations, the German Federal Supreme Court ruled on the applicability of section 1032 II ZPO to ICSID arbitration proceedings, primarily justifying its decision by emphasizing the primacy of EU law. This case note analyses the German Federal Supreme Court’s reasoning and provides insights into the practical implications and the broader impact on intra-EU investment arbitration proceedings.

India and the European Union Investment Protection Agreement Negotiations: Is Convergence Possible?

India and the European Union Investment Protection Agreement Negotiations: Is Convergence Possible?

The Expropriation Provision in the Investment Protection Agreement Between Vietnam and the European Union

Provisions on expropriation of investors' property rights are intended to protect foreign investors by establishing standards and conditions for acts of interference in property ownership of the receiving country. By international practice, this provision is indispensable in international investment agreements and becomes clearer through international investment case law. The Investment Protection Agreement between Vietnam and the European Union (EVIPA) is built to reflect the standard criteria for protecting investors' interests in case of expropriation of property but also creates specific commitments in accordance with Vietnamese law practice.

Investor-State Dispute Settlement Mechanism in Vietnam’s New Generation Free Trade Agreements: Challenges and Recommendations

In the recent years, Vietnam's attraction to foreign investment capital has increased rapidly. As a result, the disputes in the field of foreign investment have emerged more frequently. The fact that a dispute occurs between the government of the host country and a foreign investors, regardless of its cause, will bring adverse consequences to both parties. Amicable settlement of such disputes is an important factor to improve the efficiency of foreign investment, maintaining the trust between the host country and foreign investors. Therefore, stipulating commitments on the dispute settlement mechanism for international investment in multilateral free trade agreements such as Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), Vietnam - EU Investment Protection Agreement (EVIPA), and Regional Comprehensive Economic Partnership (RCEP) are indispensable. Therefore, in this context, the paper studies the investor-state dispute settlement (ISDS) mechanism in new-generation free trade agreements to which Vietnam is a member, namely EVIPA, CPTPP, RCEP; accordingly, the paper proposes some recommendations to Vietnam.

Political economy of South–South relations: an analysis of BRICS’ investment protection agreements in Latin America and the Caribbean

In the late 2000s, the emergence of the BRICS (Brazil, Russia, India, China and South Africa) gave rise to expectations of an alternative for the countries of the Global South in relation to the traditional powers. In this paper, we investigate international investment agreements between the BRICS and Latin America and the Caribbean (LAC). We seek to identify to what extent the BRICS can promote changes in the international investment regime or, on the contrary, reinforce the traditional model of foreign investment protection. To this end, we investigated LAC’s political-economic relations with each BRICS country through document analysis of their models of agreements and secondary data analysis of investment, trade, and credit flows, as well as social and environmental conflicts. We conclude that, although some of the BRICS have promoted important innovations in their investment agreements, the models used by each member with their Latin American counterparts mostly reproduce (except for Brazil) the traditional model. Further, the bloc’s economic relations with LAC have largely reinforced the region’s role as an exporter of raw materials, reproducing asymmetric relations of dependency. Therefore, LAC–BRICS relations, despite representing a geopolitical counterpoint, are limited in contributing to a socially just and sustainable development process.

Provisions on frivolous claims in the European Union – Vietnam investment protection agreement – would they be benefits to Vietnam?

PurposeThis paper aims to examine two issues: whether provisions on frivolous claims in the European Union (EU)–Vietnam Investment Protection Agreement (EVIPA) would be Vietnam’s intrinsic demand, and to what extent, Vietnam may enjoy the benefits from these provisions.Design/methodology/approachThis paper combines both doctrinal legal analysis and policy research. It offers an in-depth case study of the provisions on frivolous claims in the EVIPA, compares them with those of other existing international investment agreements and arbitrations rules, examines how similar provisions in these instruments are interpreted in available practical international investment disputes, uncovers the Vietnam’s position through interviewing Vietnamese senior experts, who were members of the Vietnamese delegation negotiating the EVIPA, and through available collected data and then evaluates whether these provisions may be favourable to this country.FindingsWhile the new investor-state dispute settlement (ISDS) mechanism in the EVIPA can be viewed as explicit evidence of the EU’s achievement, it may also be Vietnam’s benefits to entertain new ISDS provisions on frivolous claims. They were drafted, based on the ISDS arbitration practice, states’ experience and actual situations in Vietnam. These novel provisions, among other things, serve as Vietnam’s prerequisites to consider whether to accept the new two-tier standing mechanism or not. The inclusion of such ISDS provisions in the EVIPA, therefore, is supposed to meet the Vietnam’s intrinsic demands for defending against unfounded frivolous cases.Originality/valueThis is the first time the EU concluded an investment treaty containing innovative ISDS provisions with a developing country. This paper therefore may help envisage Vietnam’s perspective during its negotiation of provisions on frivolous claims in the EVIPA and prove that the avails of these provisions to a frequent respondent State like Vietnam can be realised. The paper’s findings mean for research in investment law as well as for policymakers as far as the frivolous cases are concerned.

Vietnam’s Commitments Under the European Union – Vietnam Investment Protection Agreement (EVIPA): Some Noteworthy Points

Abstract The Investment Protection Agreement among Vietnam, the European Union (EU) and each of the EU’s member states (EVIPA) was signed by Vietnam and the EU on June 30, 2019, in Ha Noi. While the Free Trade Agreement between Vietnam and the EU (EVFTA) promotes trade liberalization between Vietnam and EU countries, EVIPA establishes legal safeguards for outward investment activities of investors from EU countries into Vietnam and vice versa. The EVIPA has not yet come into effect as it needs to be approved not only by the EU Council and the National Assembly of Vietnam, but also by the Parliaments of all EU’s member states. Even so, with the EVFTA in place, Vietnam hopes to attract more investment from the EU as Vietnam has committed to provide investors from the EU with certain protection some of which have not been available in any other investment protection agreements to which Vietnam is a party. Investors with EU nationalities undoubtedly are interested in how Vietnam could implement its commitments under the EVIPA. The paper discusses key commitments of Vietnam under the EVIPA along the lines of relevant provisions of Vietnam law and addresses some noteworthy points for investors from the EU planning to invest in Vietnam. It argues that understanding how domestic law and regulations facilitate international commitments would help investors from the EU prepare for their investments in Vietnam.

Pertes et deuils migratoires chez les immigrants peu scolarisés au Québec

Qualitative research conducted in Quebec aims to trace the psychosocial profile of immigrants in a vulnerable situation due to their migratory journey and to identify the challenges of the actors involved in their integration process. The participants in the research are enrolled in a francization program specific to Quebec for immigrants with low literacy skills (Foreign Investment Promotion and Protection Agreement). The results raise several issues related to the grief and loss experienced by the most fragile immigrants. Indeed, the challenges of post-migration life and integration into the host society are added to the many migratory losses and the suffering of ongoing grief.

Benefits of EVIPA for Vietnam: Perspective from national competitiveness

This discussion paper aims to present the view on the possibility of benefits that Vietnam receives from the Vietnam - European Union Investment Protection Agreement (EVIPA). The paper opens by sketching an optimistic expectation of the benefits of EVIPA from recounting statements by experts and country administrators in the mainstream news. Next, the paper reflects the current situation of foreign direct investment (FDI) flows between the two sides through archived data; at the same time, it provides arguments to explain why FDI flows have not been able to increase significantly after EVIPA. However, attracting FDI is only a premise, benefiting from FDI is the key point. Using the World Economic Forum's Global Competitiveness Index data in 2019 to compare the national competitiveness of Vietnam and 27 EU member states, the paper points out that Vietnam's national competitiveness is both low and the distance is too far from the EU. With too few FDI flows plus low national competitiveness, it is difficult for Vietnam to enjoy as many benefits from EVIPA as expected. The article emphasizes the awareness of the importance of enhancing national competitiveness in order to enhance absorption capacity, thus, Vietnam can benefit from EVIPA.

Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?

AbstractThe practice of arbitrators and counsel in investor-state dispute settlement (ISDS) cases simultaneously playing both roles — known as “double-hatting” — has been the subject of much controversy in recent debates on ISDS reform, notably, at the United Nations Commission on International Trade Law’s (UNCITRAL) Working Group III where a Draft Code of Conduct for Adjudicators in International Investment Disputes is under discussion. While Canada has been less than consistent in its approaches to ISDS in recent international investment agreements (IIAs), its position against double-hatting has been rather constant. This article explores whether this stance reveals a commitment on the part of Canada towards increased judicialization of ISDS or reflects a “flavour of the month” reform likely to change with differing IIAs and negotiating partners. Analysis of Canada’s recent IIA practices, including its model Foreign Investment Promotion and Protection Agreement, released in May 2021, and the positions it has taken at UNCITRAL’s Working Group III, lead the author to conclude that Canada appears committed to increased judicialization of ISDS in the long run.

The Corporate Duty to Contribute to Sustainable Development from the Perspective of Investment Arbitration

International investment law is a law field known for granting a wide array of legal rotection to private companies. Traditionally, the latter have had very few obligations vis-à-vis their host States. The abundant case law, which originates from arbitral tribunals, have thus mostly focused on construing and developing the legal standards and principles of investment protection. Such cases arose in a specific arbitral configuration inherent to international investment law whereby the claimant is normally the investor and the defendant is its host State. This trend is however changing concomitantly with the very landscape of international investment law which has freshly started to include standards of corporate social responsibility and investors’ duties within its ambit, namely in investment protection agreements. Some of these duties, which have been upheld by arbitral tribunals, relate to sustainable development and focus, for instance, on environmental and human rights protection or on preventing corruption (mal)practices. Set against this background, this article will discuss whether there is, in international law, a corporate duty to contribute to sustainable development. It will argue that the duty exists even though its legal regime is still under technical construction and is flawed in some of its aspects. Alternatively, the article uncommonly presents investment arbitration as a venue to enforce sustainable development corporate duties.

Investment Court System Under EU Trade and Investment Agreements: Addressing Criticisms of ISDS and Creating New Challenges

The Investment Court System (‘ICS’) included in the European Union (‘EU’)’s recent investment and trade agreements provides for the creation of a permanent first instance tribunal (‘First Instance Tribunal’) and an appellate tribunal (‘Appeal Tribunal’) drawn from a pre-selected roster of tribunal members. The ICS imposes mandatory transparency of proceedings, as well as a strict code of conduct applicable to all tribunal members. The ICS is expected to address several long-standing criticisms levied against investor-State dispute settlement (‘ISDS’). At the same time, the ICS raises new challenges that must be resolved for its effective operation. These must be addressed first and foremost by the EU and those pioneering trading partners who have so far committed to the ICS; only once resolved will the ICS gain traction with ISDS stakeholders. EU Investment Court System, CETA, EU–Singapore Investment Protection Agreement, EU–Vietnam Investment Protection Agreement, EU–Mexico Global Agreement, enforcement of ICS awards, ICSID Convention, New York Convention, ISDS

An Overview of the Legal Measures for Promotion and Protection of Investments in Nigeria

The promotion and protection of investors have over the years suffered policy and developmental drive. The Nigerian system is characterized by inconsistent policies of the governments in investments growth. The country has a high desire for economic development. This article begins with an introduction, followed by the historical development of investors’ protection in Nigeria, the agencies created for the investment protection such as Nigerian Investment and Promotion Commission (NIPC) and Investment Promotion and Protection Agreement (IPPA), the factors that militate against investment growth in Nigeria, the legal methods by which investment disputes could be settled and concludes that if the recommendations proposed in this article would be adopted apparently, Nigeria will become one of the world’s greatest economy.

The EU-Vietnam Investment Protection Agreement: Analysing the Scope of the Agreement and National Treatment

Vietnam is the second Asian country, after Singapore, to sign a trade and investment agreement with the European Union (“EU”). While opinions regarding its desirability from a human rights perspective differ, it should be noted that the EU is the 5th largest direct investor in Vietnam, having invested more than 23.927 billion US dollars by the end of 2018. Negotiations for this agreement lasted from 2012 until 2015, after which it was divided into two parts: (1) the Free Trade Agreement (“FTA”), and, (2) the Investment Protection Agreement (“IPA”). This apportionment is due to the division of the competences between the EU and its Member-States as embedded in the Treaty on the Functioning of the European Union (“TFEU”). A consequence of the division is that the international agreements made by the EU are to be separated into a part which contains competences exclusive to the EU and a part which contains shared competences (and therefore must be concluded and ratified by the EU as well as its Member-States). The trade and investment agreement was signed in June 2019 and is in the process of ratification by all the EU Member-States. Due to its scale and impact, this IPA has required significant time and attention to ensure indented scope and interpretation of its articles. This is important for the host state, as a broad or ill-drafted IPA could potentially result in investment disputes. It is therefore in the interest of the parties that the IPA is well defined and narrowly interpreted by tribunals, as tribunals have taken different approaches when interpreting treaty standards. A well-defined and narrow application of treaty standards could prevent unexpected interpretations which could broaden the scope and result in adverse effects for the treaty parties. One way to provide a narrow and well-defined standard is by limiting to what investors the IPA applies to. By imposing more requirements and narrowly defining its scope, an IPA can limit the scope of application, as well as provide less room for unexpected and broadening interpretations by tribunals. This scope of application, in turn, is significant for the standard of National Treatment (NT), as it compares foreign and domestic covered investors and investment to establish potential violations. Keeping that in mind, I shall analyse the scope of the IPA and the standard of NT, focussing on the clarity of the wording as well as the guidance and possible grey areas tribunals may face or encounter when interpreting these notions. Thereafter, a brief conclusion shall be provided.

Why investing in Africa? The differential role of Chinese government support

We study whether the determinants of greenfield FDI in Africa differ between Chinese and non-Chinese investors. By using investment-level data we focus on the differential effect of risk- and information-related factors, i.e., investment protection provided by International Investment Agreements (IIAs) and agglomeration economies (country-of-origin agglomeration, industry agglomeration, and internal agglomeration) both at an aggregate level and for different functions. Chinese investors appear to be less reliant on internal and country-of-origin agglomeration and on investment protection agreements than non-Chinese ones. This result appears to be mostly driven by investments in Services and Manufacturing activities. We argue that Chinese investors are backed by the direct engagement of their State when locating in Africa so that firm co-location and IIA protection are less salient in affecting their location choices.

The Legal Measures for Promotion and Protection of Investments in Nigeria

The promotion and protection of investors have over the years suffered policy and developmental drive. The Nigerian system is characterized by inconsistent policies of governments in investments growth. The country has a high desire for economic development. This article begins with an introduction, followed by the historical development of investors’ protection in Nigeria, the agencies created for investment protection, such as the Nigerian Investment and Promotion Commission (NIPC) and the Investment Promotion and Protection Agreement (IPPA), the factors that militate against investment growth in Nigeria, the legal methods by which investment disputes could be settled and concludes that if the recommendations given in this article are implemented, that Nigeria shall become one of the greatest economies in the World. Investment protection, investment growth, Nigeria, foreign investment, litigation, arbitration

The Free Trade Agreement Between the European Union and Vietnam

The European Union and Vietnam have signed a far-reaching Free Trade Agreement, which came into force on 1 August 2020 and represents a turning point in the trade relations that the Union has with third countries. In addition to providing for a substantial reduction in duties, partly with immediate effect and partly over the next few years, the agreement affects non-tariff barriers, substantially simplifying the documentation needed for customs operations (in particular in Vietnam) and the certifications required for certain types of products (for example, for pharmaceuticals). The Agreement also limits the adoption of anti-dumping and countervailing duties, specifying that trade remedies should be enforced in full compliance with the relevant requirements of the World Trade Organization and should be based on a fair and transparent system. The products originating from the two contracting parties will benefit from the duty exemptions and reductions upon production of a proof of preferential origin, represented, up to a value of 6,000 euros, by the exporter’s invoice declaration and, above this amount, by an exporter registered on the REX (Registered EXporter) system. The protection of intellectual property, ‘Made in’ and geographical indications is ensured, with specific provisions aimed at preventing fraud. Along with the Free Trade Agreement, the Union and Vietnam have also signed an Investment Protection Agreement, whose main point is the provision for the creation of an independent and qualified court to settle disputes between investing companies and the state. Agreements, Vietnam, Preferential, REX, protection, investments, ASEAN, Exports, Made in, ICS

The Free Trade Agreement and Investment Dispute Settlement Between the European Union and Vietnam: A Critical Assessment

Abstract The European Union (EU) is an open market economy, and against the rise of protectionism globally, the ‘Global Europe: Competing in the world’ communication of European Commission in 2006 reflected the EU perspective that Free Trade Agreements as alternatives can go further and faster in promoting openness and integration, by tackling issues which are not readily available for multilateral negotiations and by preparing the stepping stones for the next level of multilateral liberalization. After the prolonged negotiations and the EU’s legislative processes, the European Parliament gave its consent to both agreements of European Union – Vietnam Free Trade Agreement and Investment Protection Agreement on 12 February 2020. Those bilateral instruments promote enhanced transparency and regulatory best practices that are consistent with existing international norms or standards, also an important stepping stone and a show-case for the EU’s longer-term goal of a region-to-region (EU - Southeast Asia) trade deal. Those agreements have established a new two-level judicial structure with the strong judicial character (Investment Tribunal System – ITS) which Vietnam has accepted via legally binding commitments. It is important for Vietnam to follow the good governance standards and the rule of law principles. If the ITS works well, it will provide additional safeguards and guarantees to investors whereby FDI flows to Vietnam are likely to increase. Finally, the ITS regime provides a powerful incentive or a catalyst to review and modernize the domestic legal system of Vietnam not only to improve the investment eco-system in Vietnam but to pave the way for optimization of its economic potential and competitive power in the region (i.e. in the ASEAN).

EU-베트남 투자보호협정(IPA)상 투자분쟁해결(ISDS)을 위한 투자법원제도(ITS)에 관한 연구

EU-베트남 투자보호협정(IPA)상 투자분쟁해결(ISDS)을 위한 투자법원제도(ITS)에 관한 연구

The UE-Vietnam Free Trade and Investment Protection Agreements: Legal and Economic Perspectives

Purpose: On 1 August 2020, the EU-Vietnam Free Trade Agreement went into force. After completing the EU-Vietnam Investment Protection Agreement's ratification, the two agreements will create the legal basis of strong economic relations between the parties. However, we argue that these agreements are an element of a broader strategy, pursuing the EU's economic and socio-political goals. Design/Methodology/Approach: The research is interdisciplinary, economic, and legal. We analyze the process of establishing the legal framework of EU-Vietnam relations and its context in the New Haven School's application schema, combining it with rational choice. The research was conducted based on public statistics and analysis of the literature on the subject. Findings: The EU pursues a policy of through trade. The agreements deepen Vietnam's participation in the universal economic and social system based on the UN Charter's values. They also strengthen the institutionalization of pluralism in relations in the Asia region and institutions and countries outside the region. Practical Implications: EVFTA and EVIPA represent a new approach of the EU to trade agreements and how to influence international relations in a system where the U.S. have lost their status as the only superpower, and China seeks to become a real global superpower. Realizing this change in EU trade policy is important for all Member States and other international relations actors. Originality/Value: The paper discusses important and current issues related to EU trade and investment policies and can develop future policy scenarios.