DECISION

PROMULGATION OF REGULATION ON COOPERATION IN RESOLUTION OF INTERNATIONAL INVESTMENT DISPUTES

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Investment dated November 26, 2014;

Pursuant to the Government’s Decree No. 96/2017/ND-CP dated August 16, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

At the request of the Minister of Justice;

The Prime Minister hereby promulgates a Decision on regulation on cooperation in resolution of international investment disputes.

Article 1. The Regulation on cooperation in resolution of international investment disputes is promulgated together with this Decision.

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Article 3. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities are responsible for the implementation of this Decision./.

THE PRIME MINISTER




Nguyen Xuan Phuc

REGULATION

ON COOPERATION IN RESOLUTION OF INTERNATIONAL INVESTMENT DISPUTES
(Enclosed with the Prime Minister’s Decision No. 14/2020/QD-TTg dated April 08, 2020)

Chapter I

GENERAL

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1. This document provides for principles, tasks, powers and process of cooperation among regulatory agencies and relevant organizations and individuals in resolving international investment disputes through international arbitration or at other tribunals outside Vietnam (hereinafter referred to as “international arbitration”). This document does not apply to the resolution of investment lawsuits through arbitration, at courts or organizations of Vietnam in accordance with Vietnamese law.

2. This document applies to regulatory agencies, organizations and individuals involved in resolution of international investment disputes through international arbitration.

Article 2. Definitions

1. “international investment dispute” refers to a dispute arising from the event in which a foreign investor makes a claim against Vietnamese government or regulatory agency or organization authorized to exercise its governmental authority (hereinafter referred to as “regulatory agency”) under:

a) An Agreement on Promotion and Protection of Investments or trade agreement or another international treaty providing for investment protection to which Vietnam is a signatory (hereinafter referred to as “investment agreement”), which provides for resolution of international investment disputes through international arbitration; or

b) An agreement between a Vietnamese regulatory agency and a foreign investor, which stipulates that the agency in charge of resolution of disputes arising from such agreement is an international arbitration center.

2. “foreign investor” refers to an organization or individual that satisfies criteria applied to foreign investors under the relevant investment agreement to which Vietnam is a signatory.

3. “presiding authority” refers to an authority that is defined as prescribed in Article 5 of this document.

4. “Government’s legal representative body” is the Ministry of Justice.

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6. “relevant agency, organization or individual” refers to a regulatory agency, organization or individual involved in resolution of an international investment dispute and invited tor requested by a presiding authority to participate in resolving a specific international investment dispute.

7. “cross-sectoral working group” refers to a group that is established by a presiding authority, includes representatives of some Ministries, departments, agencies and organizations and meant to advise the presiding authority on the resolution of a specific international investment dispute.

8. “witness” refers to a person who is knowledgeable about facts relevant to an international investment dispute.

Article 3. Cooperation principles

1. Presiding authorities, Government’s legal representative body and relevant organizations and individuals shall cooperate in resolution of international investment disputes proactively in a sufficient, timely and effective manner in accordance with regulations of this document and Vietnamese law to protect legitimate rights and benefits of Vietnamese government and regulatory agencies to the maximum.

2. Presiding authorities, Government’s legal representative body and relevant organizations and individuals shall keep state secrets and maintain confidentiality of information and documents collected during the resolution of international investment disputes in accordance with regulations on international arbitration proceedings and Vietnamese laws.

3. Presiding authorities, Government’s legal representative body and relevant organizations and individuals shall take legal responsibility for the consequences that arise due to the fact that they fail to cooperate or cooperate against the principles mentioned in this Article.

Article 4. Contents of cooperation

1. Exchange of information and documents between relevant authorities during the settlement of foreign investors' claims, denunciations and difficulties with a view to prevention of international investment disputes.

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a) Appointing qualified persons to join the cross-sectoral working group in resolution of international investment disputes at the request of a presiding authority.

b) Participating in negotiating or mediating international investment disputes.

c) Formulating and implementing strategies, roadmaps and procedures for resolution of international investment disputes.

d) Collecting and providing information, records, documents and evidences with a view to resolution of international investment disputes.

dd) Handling contents related to international arbitral awards and decisions.

e) Performing other tasks upon resolution of international investment disputes.

Article 5. Presiding authorities

1. 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 have a measure that a foreign investor claims against or threatens to claim against, except for the cases specified in Clauses 2, 3 and 4 of this Article.

If the international investment dispute involves measures against which a claim is made of 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 on which the notice of intent to claim.

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2. The Ministry, ministerial agency, Governmental agency or provincial People’s Committee shall take charge of negotiating or on behalf of the Government of Vietnam signing an agreement with a foreign investor that is an authority presiding over resolution of the international investment dispute under such agreement.

3. 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.

4. If a complicated international investment dispute adversely affects foreign relations, security or national defense, the Ministry of Justice shall request the Prime Minister to decide on a presiding authority.

Article 6. Tasks and powers of a presiding authority

1. Receive and process information and documents concerning the request for negotiation and claims made by the foreign investor.

2. Preside over negotiation with the foreign investor under the agreement between Vietnam and the foreign investor or relevant agreement.

3. Act as a contact point that facilitates exchange of information with the foreign investor that makes claim and with the international arbitration that settles international investment disputes.

4. Preside over and cooperate with the Government’s legal representative body and relevant organizations and individuals in the process of resolving international investment disputes.

5. Preside over and cooperate with the Government’s legal representative body and relevant organizations and individuals in formulation of strategies, roadmaps and procedures for resolving international investment disputes.

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7. Preside over and cooperate with the Government’s legal representative body in selecting, negotiating, signing and managing contracts on hiring law-practicing organizations (hereinafter referred to as "lawyers") to resolve international investment disputes, inviting witnesses and hiring experts in consideration of proposals by lawyers.

8. Preside over and cooperate with relevant organizations and individuals in handling issues concerning international investment dispute.

9. Attend international arbitration hearings.

10. Preside over mediation and negotiation with the foreign investor in accordance with regulations of this document.

11. Preside over and cooperate with regulatory agencies in complying with international arbitral awards and decisions.

12. Enable members of the cross-sectoral working group to access relevant documents and information; provide information to mouthpieces and news agencies; maintain confidentiality of information and keep state secrets in accordance with regulations of law.

13. Report issues concerning international investment disputes to the Prime Minister, Government’s legal representative body and competent authorities in accordance with this document and regulations of law and report them at the request of the Prime Minister.

14. Promulgate rules and regulations to serve resolution of specific international investment disputes according to this document and relevant regulations of law.

15. Submit written notifications of law firms representing the Government to the international arbitration.

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1. Act as a contact point that assists the Government and Prime Minister to unify the resolution of international investment disputes.

2. Compile and update the list of legal experts that may act as arbitrators and list of law practicing organizations that may act as lawyers for regulatory agencies in resolution of international investment disputes.

3. Train and strengthen capacity of officials of ministries and local authorities with regard to prevention and resolution of international investment disputes.

4. Cooperate and assist the presiding authority upon request in the following tasks:

a) Provide legal advice on resolution of international investment disputes;

b) Hire lawyers and appoint arbitrators;

c) Formulate and implement strategies, roadmaps and procedures for resolution of specific international investment disputes;

d) Attend hearings on resolution of international investment disputes;

dd) Appoint its representatives to join the cross-sectoral working group;

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Article 8. Tasks and powers of relevant organizations and individuals

Relevant organizations and individuals have the following tasks and rights:

1. Sufficiently, promptly and accurately provide information, records, documents, evidences and opinions on relevant contents at the request of the presiding authority and/or Government's legal representative body; in case of failure to provide them, reasons shall be clearly stated;

2. Appoint their members to join the cross-sectoral working group at the request of the presiding authority;

3. Maintain confidentiality of information and documents and keep state secrets during the dispute resolution;

4. Effectively cooperate with the presiding authority and Government’s legal representative body in resolving international investment disputes at the request of such presiding authority and Government’s legal representative body in a manner that is suitable for their expertise or fields under their line management.

Chapter II

COOPERATION IN SETTLEMENT OF FOREIGN INVESTORS’ CLAIMS AND DENUNCIATIONS

Article 9. Settlement of investors’ claims and denunciations

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2. If the regulatory agency or organization is informed of any claim, denunciation or difficulty but does not have the power to settle it, such regulatory agency or organization shall instruct the foreign investor to submit it to a competent authority and shall notify the competent authority thereof.

Article 10. Responsibility of the claim and denunciation settlement authority for cooperation

In case of failure to completely settle a foreign investor’s claim, denunciation or difficulty specified in Article 9 of this document, the claim, denunciation and difficulty settlement authority shall cooperate with the Government’s legal representative body in proposing measures for resolving and preventing international investment disputes or shall report it to the Prime Minister if:

1. The measure against which the investor makes a claim or which the investor denounces is suspected of violating regulations of law, investment agreement or another agreement with the foreign investor;

2. It is likely to provoke an international investment dispute.

Chapter III

COOPERATION IN RESOLUTION OF DISPUTES WITH FOREIGN INVESTORS

Article 11. Responsibility for negotiating with foreign investors

If the presiding authority defined as prescribed in Article 5 of this document receives a request for negotiation or notice of intent to claim from the foreign investor with regard to the dispute that arises from the foreign investment made in Vietnam, it shall immediately cooperate with the Government’s legal representative body in presiding over a negotiation and shall report the negotiation result to the Prime Minister.

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1. The presiding authority shall receive the notice of intent to claim, notice of arbitration or equivalent notice from the foreign investor with regard to an international investment dispute submitted to the international arbitration.

2. If the regulatory agency, organization or individual that is not a presiding authority receives a notice of intent to claim, notice of arbitration or equivalent notice from the foreign investor with regard to an international investment dispute submitted to the international arbitration, it shall send a written notice enclosed with copies of information and documents received within 03 working days from the receipt of the aforementioned notice to the presiding authority or to the supervisory authority or Government’s legal representative body in case of failure to decide on a presiding authority as prescribed in Article 5 of this document.

3. Within 03 working days from the receipt of the notice in writing form or any other form, the Government's legal representative body shall send a written response enclosed with copies of all documents received to the presiding authority or request the Prime Minister to decide on a presiding authority as prescribed in Article 5 of this document.

Article 13. Notice of foreign investor’s claim and request for information, documents, evidences and records serving resolution of international investment disputes

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

2. The notice specified in Clause 1 of this Article shall contain:

a) Name and nationality of the foreign investor;

b) Grounds for making the claim and measure against which the claim is made;

c) The international arbitration that resolves the international investment dispute;

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dd) Request made by the foreign investor;

e) Preliminary assessment of the international investment dispute;

g) Name of the regulatory agency, organization or individual requested to cooperate and information, records, evidences and documents to be provided to serve the resolution of the international investment dispute;

h) Other contents necessary for resolution of the international investment dispute.

3. The regulatory agency, organization or individual that is requested to cooperate as prescribed in Clause 2 of this Article within 05 working days from the date on which the request is received shall give a written response and provide information, records, evidences and documents in a sufficient and accurate manner.

4. Where necessary, the presiding authority shall request the relevant organization or individual to provide additional information, records, evidences and documents and appoint persons to join the cross-sectoral working group to serve resolution of the international investment dispute.

The relevant organization or individual shall provide additional information, records, evidences and documents and appoint persons to join the cross-sectoral working group at the request of the presiding authority within 05 working days from the date on which the request is received.

5. In case of failure to meet the deadline specified in Clauses 3 and 4 of this Article for objective reasons, the relevant organization or individual shall send a notice to the presiding authority, specifying reasons and date of completion.

Article 14. Formulation of strategy to resolve international investment disputes

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Within 10 working days from the receipt of the official claim submitted by the foreign investor, the presiding authority shall cooperate with the Government’s legal representative body, 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.

2. An overall strategy to resolve an international investment dispute contains at least:

a) Summary of the international investment dispute and relevant legal grounds;

b) Strengths and weaknesses of Vietnam side and foreign investor;

c) Description of the proceeding procedures for resolution of the international investment dispute and the presiding authority, relevant organization and individual’s tasks specified in the procedures;

d) Employment of lawyers and appointment of arbitrators (if available);

dd) Proposed measures for resolving the international investment disputes, including negotiation or mediation measures;

e) Relevant remarks and propositions.

3. Within 05 working days from the overall strategy to resolve the international investment dispute, the competent authority specified in Clause 1 of this Article shall approve this strategy and submit it to the presiding or Government's legal representative body.

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5. The strategy to resolve the international investment dispute shall be kept confidential.

Article 15. Establishment and dissolution of the cross-sectoral working group

1. The presiding authority shall, according to nature of the dispute, the presiding authority shall decide on establishment and operation of the cross-sectoral working group.

2. The cross-sectoral working group shall be established if the international investment dispute is submitted to the international arbitration. Where necessary, the cross-sectoral working group may be established after the presiding authority receives the foreign investor’s notice of intent to claim with regard to an international investment dispute submitted to the international arbitration.

3. Members of the cross-sectoral working group include representatives of the presiding authority, Government’s legal representative body and relevant organizations and individuals. The chief of the cross-sectoral working group shall be the head of a presiding authority.

The vice chief of the cross-sectoral working group is:

a) a representative of the Ministry of Planning and Investment if the Government of Vietnam is the defendant according to Point a Clause 1 Article 2 of this document;

b) a representative of the Ministry of Justice if the Government of Vietnam is the defendant according to Point b Clause 1 Article 2 of this document;

c) a representative of the regulatory agency at the same level as the presiding authority and decided by the presiding authority if a Vietnamese regulatory agency (which is not the Government of Vietnam) is the defendant.

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Article 16. Tasks of the cross-sectoral working group

1. The cross-sectoral working group has the following tasks:

a) Advise the presiding authority and Government’s legal representative body on issues concerning resolution of international investment disputes.

b) Assist the presiding authority in formulating the approved overall strategy to resolve international investment disputes.

c) Members of the cross-sectoral working group shall comment on issues within the jurisdiction of the authority appointing members.

Article 17. Working regulations of the cross-sectoral working group

1. Members of the cross-sectoral working group shall work on a part time basis.

2. Members of the cross-sectoral working group shall perform their tasks as assigned by the chief and sufficiently and effectively engage in activities conducted by the cross-sectoral working group. Where necessary, the cross-sectoral working group shall decide on the participation by lawyers in activities conducted by the cross-sectoral working group.

3. The presiding authority shall appoint a department to assist the cross-sectoral working group in performing administrative duties and make necessary preparations for activities conducted by the group.

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1. The presiding authority shall cooperate with the cross-sectoral working group (if any), relevant organizations and individuals and lawyers (if any) in collecting documents at the request of the international arbitration.

2. The presiding authority shall cooperate with the cross-sectoral working group (if any) in deciding on the documents to be provided by Vietnam and those that cannot be provided.

Article 19. Formulation and completion of defence statements, answers and documents submitted to the international arbitral tribunal

1. The presiding authority shall cooperate with the Government’s legal representative body, relevant organization/individual and lawyer (if any) in preparing and completing a defence statement, answer and documents submitted to the international arbitral tribunal in accordance with the proceeding procedures for resolution of the international investment dispute.

2. The body, relevant organization or individual shall provide their written comments on the draft defence statement, answer and documents submitted to the international arbitral tribunal within 05 working days from the date on which the presiding authority’s written request is received unless the presiding authority sets another deadline,

3. Upon submission of the defence statement, answer and documents to the international arbitral tribunal, the presiding authority shall submit copies of the aforementioned documents to the Government’s legal representative body.

Article 20. Attending international arbitration hearings

1. The presiding authority shall cooperate with the Government’s legal representative body, cross-sectoral working group, relevant organization/individual and lawyer (if any) to make preparations for the international arbitration hearing.

2. Depending on nature of the dispute, the presiding authority shall cooperate with the Government’s legal representative body, cross-sectoral working group, relevant organization/individual and lawyer (if any) in selecting persons to attend the hearing.

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1. Within 10 working days from the end of the international arbitration hearing, the presiding authority shall submit a report on the hearing to the Prime Minister and Government's legal representative body.

2. The presiding authority shall cooperate with the Government's legal representative body, relevant organization or individual in handling post-hearing/award/decision issues.

3. If the Government of Vietnam (or Vietnamese regulatory agency) has 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, ensuring that the award, decision and relevant regulations of Vietnamese law are complied with.

Article 22. Recognition and implementation of international arbitral awards and decisions

The presiding authority shall cooperate with the Ministry of Foreign Affairs, Government’s legal representative, competent authority and lawyer (if any) in recognizing and implementing international arbitral awards and decisions in Vietnam or a foreign country if the recognition and implementation are favorable to Vietnam.

Article 23. Review and assessment of resolution of international investment disputes

After resolving an international investment dispute, the presiding authority shall cooperate with the Government’s legal representative body and relevant organizations and individuals in reviewing and assessing the resolution, draw on experience and submit a report to the Prime Minister.

Article 24. Hiring lawyers

1. Depending on the seriousness of each international investment dispute, the presiding authority shall cooperate with the cross-sectoral working group and lawyer in conducting a negotiation and deciding to select and hire lawyer.

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3. The presiding authority shall sign a legal service contract with the lawyer after reporting the negotiation result in accordance with the procedures specified in Clause 2 of this Article.

4. The presiding authority shall cooperate with the relevant regulatory agency in properly manage and execute the legal service contract signed with the lawyer.

Article 25. Witnesses

1. Depending on the international investment dispute or advice provided by the lawyer (if any), the presiding authority shall cooperate with the cross-sectoral working group, relevant organization or individual in inviting witnesses with a view to serving resolution of the dispute.

2. Witnesses shall be reimbursed for meal, accommodation and travel expenses and lost earnings in accordance with the regulations laid down in Chapter IV of this document.

Article 26. Hiring experts

1. Depending on the international investment dispute and in consideration of proposals by the lawyer, the presiding authority shall cooperate with the cross-sectoral working group, relevant organization/individual and lawyer (if any) in deciding to hire qualified experts to serve resolution of the international investment dispute and meet requirements for proceeding time.

2. The presiding authority shall manage tasks performed by experts under a contract.

3. Remuneration for experts shall be provided in accordance with the regulations laid down in Chapter IV of this document.

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1. During the resolution of an international investment dispute, the presiding authority shall, according to specific developments, cooperate with the cross-sectoral working group in considering, assessing capacity and formulating an appropriate mediation plan, which will be submitted to the Prime Minister for decision.

2. The mediation plan shall be formulated in a manner that ensures the international investment dispute, protects rights and interests of Vietnam and suit the process of resolving the dispute.

3. If the mediation is approved as prescribed in Clause 1 of this Article, the presiding authority shall cooperate with the cross-sectoral working group and lawyer (if any) in conducting the mediation according to the approved plan.

Chapter IV

FINANCIAL MECHANISM SERVING RESOLUTION OF INTERNATIONAL INVESTMENT DISPUTES

Article 28. Funding for resolving international investment disputes

1. If the presiding authority is a Ministry, ministerial agency or Governmental agency, the funding for resolving an international investment dispute shall be covered by the central government budget.

2. If the presiding authority is a provincial People’s Committee, the funding for resolving an international investment dispute shall be covered by the local government budget in accordance with regulations on state budget hierarchy.

3. Within 10 working days from the receipt of the funding estimate sent by the presiding authority, the finance authority at the same level shall appraise the funding for resolving the international investment dispute and cooperate with the presiding authority in submitting it to a competent authority for decision.

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5. The management, use and settlement of funding used in the entire process of resolving an international investment dispute shall comply with regulations of the Ministry of Finance on guidelines for making estimates, management, use and settlement of state budget for resolving international investment disputes.

Article 29. Funding for participation by regulatory agencies in resolution of international in resolution of international investment disputes

1. Funding for performing the task of acting as a legal representative of the Government shall be covered by annual operating funding of the Ministry of Justice.

2. Funding for cooperation in resolution of international investment disputes shall be provided to the presiding authority depending on each specific dispute (including funding for activities conducted by the cross-sectoral working group) and comply with regulations of Ministry of Finance on management, use and settlement of funding for resolving international investment disputes.

3. Night work and work overtime pay for officials performing full-time duties to resolve disputes and other expenses for increasing effectiveness in resolution of international investment disputes, including annual expenses for accessing international and domestic law data and for increasing capacity shall be provided in consideration of proposals by the presiding authority and Government’s legal representative body.

4. In special case, the Prime Minister shall decide to provide additional funding for resolving international investment disputes at the request of the presiding authority and Government’s legal representative body.

Article 30. Funding for implementing mediation agreements, international arbitral awards and decisions

1. The Ministry of Finance shall use central government budget to pay compensation if the measure against which a claim is made is taken by the central regulatory agency.

2. The provincial People’s Committee shall use local government budget to pay compensation if the measure against which a claim is made is taken by the local regulatory agency.

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IMPLEMENTATION

Article 31. Implementation clause

1. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of provincial People’s Committees shall direct and organize the implementation of this document and submit a report to the Ministry of Justice, which will submit a consolidated report to the Prime Minister.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies and Presidents of provincial People’s Committees shall promptly submit a report on difficulties that arise during the implementation of this document and submit a copy of such report to the Ministry of Justice.

Article 31. Expediting and inspecting implementation of this document

The Ministry of Justice shall preside over and cooperate with other Ministries, ministerial agencies, Governmental agencies and provincial People’s Committees in expediting and inspecting the implementation of this document./.