Tóm tắt Luận án The practice and theory of investment protection under asean’s investment agreements in the current context

laim. natural resource falls (Point c, Article 4). The term “investment” also includes revenues through investments, namely profits, interests, interests, dividends, royalties and fees; Any change in appearance in the property to be invested or reinvested does not affect the classification of the asset as an investment. 2.1.2.3. Investment protection form Obligation of protection of a host country is expressed in the form of national commitments recognized in international treaties as well as in the national legal system (multilateral, bilateral and unilateral commitments. These commitments are often built on the principle of reciprocity in international law through the application of an investment regime such as the NT or the MFN or any other special treatment that the recipient country exclusively for foreign investors. 2.1.3. The role of investment protection 2.1.3.1. For investors 8 The provisions of international law on investment protection play an important role in helping to limit investors’risks. On the basis of commitments of the host country through investment protection measures, the legitimate rights and interests of investors in the territory of the host country will be guaranteed. 2.1.3.2. For investment recipient countries Investment protection measures are primarily aimed at balancing the interests of foreign investors and those of the host country. In addition, investment protection measures will contribute to attracting foreign investment activities. Therefore, the more adequate and reasonable the investment protection measures are, the more secure it creates for foreign investors when choosing a market to invest. 2.2. Legal basis of investment protection 2.2.1. International treaties These international treaties can be divided into three categories: The first is the special treaties on investment such as international investment agreements; The second is the international treaties with international investment provisions. These are mainly bilateral or multilateral trade agreements that have a provision on investment or have a separate chapter on investment; Thirdly, treaties only provide for a specific content in investment protection, of which, mainly the mechanism for settling disputes over investment. 2.2.2. International practice International practice still plays a certain role in international investment law in general and investment protection in particular. There is no denying that some principles of international practice have been recognized in international investment law. Principles such as “the recipient country’s obligation to guarantee foreign investors and their investments for the principles of minimum treatment” or “the recipient country cannot take away the ownership of investment by a foreign investor unless four conditions are met: public purposes; lawful regulation; non-discriminatory manner and adequate compensation”. 2.2.3. Other sources of law In addition to international treaties and international practices, judgments of international jurisdictions also have very important implications in investment protection, typically the decisions of the ICJ (Court of Justice international) - the highest judicial body of the United Nation. 2.3. Principles of investment protection Common principles noted in the law on investment protection include: 9 2.3.1. Most favored nation treatment principle (Most Favoured Nation - MFN) In the field of investment, this principle aims to ensure comprehensive equality of treatment, in terms of creating a level playing field between foreign investors from different countries in two times: One is, in the period that foreign investors approach the host country to prepare investment activities; second, when the foreign investor has directly conducted investment activities in the territory of the host country. MFN under ACIA has two basic features as follows. Firstly, ACIA explicitly excludes these procedural rights from the scope of the MFN. Secondly, ASEAN member states cannot be exempt from the MFN obligations under any existing or future agreements, unless they conclude that such agreements are sub-regional agreements between the parties. 2.3.2. National treatment principles (National Treatment - NT) The National Treatment (NT) principle aims to create non- discriminatory equality between domestic investors and foreign investors in two times, firstly before foreign investors make investment. investment and secondly, when the foreign investor has directly conducted investment activities in the territory of the host country. ASEAN countries have acknowledged applying NT both before and after the establishment of the investment. However, ACIA allows exceptions in investment activities that affect the political and economic security situation of the country or to protect local SMEs because they recognize the economic imbalance between these two types of firms. 2.3.3. Principle of fair and equitable treatment (Fair and Equitable Treatment - FET) The fair and fair treatment of foreign investors fundamentally guarantees that investors are not treated unfairly in all relevant circumstances, and that means to ensure justice for foreign investors, including: + Forbid authoritarianism in decision-making; + Prohibit denial of justice and disregard the basic principles of proceedings; + Prohibit targeted discrimination on the basis of apparent wrongdoing; + Prohibit mistreatment of investors; + Protect the legitimate aspirations of investors. ACIA’s approach to FET is much narrower when the content of the FET in ACIA only relates to the obligation not to deny justice in the proceedings, not to the principle of procedural conformity. 2.3.4. Full protection sercurity principle (Full Protection Sercurity - FPS) 10 This principle implies that member state will take the necessary measures reasonably to protect investments from adverse effects. This protection must be exercised by the host country at all times, even in the event of riots or overthrow of a government in that country. These are national obligations and a breach of these obligations will result in national liability and liability for damages. However, FPS does not impose an absolute obligation on the host country, but instead imposes a “due diligence”, that is, to take appropriate measures in all circumstances. The principle of adequate protection and security is provided for in Article 11 of ACIA. Under this obligation, the host country must take all reasonably practicable measures to protect and secure investments such as prudence, prevention, remediation, and enforcement (against activities that disrupt investment) and / or conscientiousness. The FPS principle requires the host country to take positive actions, not merely the actions intended to avoid damage. 2.3.5. Comparing the principles of investment protection in ASEAN agreements on investment with some of the new generation free trade agreements 2.3.5.1. Compare the principles of investment protection in ACIA with EVIPA The principles of investment protection in ACIA and EVIPA are essentially the same, but for the FET principle, if ACIA provides that the content of the FET includes two obligations that are not denied justice and are consistent with the principle of procedure, EVIPA stipulates in the direction of listing specific acts that are considered to violate this principle of the host country. Even so, the level of protection that EVIPA offers to investors and investments is very large by allowing the parties to agree to the content of the protection principle higher than those recorded in the Agreement itself this. Regarding the principle of FPS, the content of EVIPA regulations is similar to that of ACIA when they all impose obligations for national members to take necessary measures at a reasonable level to protect, safely and adequately for their investments foreign investor. 2.3.5.2. Compare the principles of investment protection in ACIA with CPTPP The protection principle is provided for in Article 9.6 of the CPTPP, which covers the same principles as ACIA and like other IIAs, the NT, MFN, FET and FPS principle. For the NT and the MFN, the common spirit remains that each party will grant an investor and another party's investment a policy of no less 11 favorable treatment that that country in similar circumstances applies to investors. investment or your investments. The FET principles in ACIA and CPTPP both include two obligations: (i) Not to deny justice and (ii) to comply with legal procedures. The first obligation of these two treaties is similar. For the second obligation, CPTPP’s regulations are more specific than ACIA's in that CPTPP specifically references the basis as “basic legal systems in the world”. The FPS principles in ACIA and CPTPP, although there are differences in words, but the content of this principle all imposes an obligation for the host country to take necessary measures such as prevention, remediation, enforcement of activities affecting the investment activities of foreign investors. 2.4. Investment protection measures 2.4.1. No expropriation and compensation for expropriation Deprivation is the term indicating the act of expropriating or requisitioning property owned by private property for public purposes of the State and with adequate compensation. Objects of expropriation often include property rights (intangible and tangible), property interests or non-property interests. Deprivation of ownership includes two forms: direct expropriation and indirect expropriation The act of expropriation is legal when the following conditions are met: (1) for a public purpose (or a statutory purpose), (2) non-discrimination, (3) payment timely, full and effective compensation and (4) due legal process. 2.4.2. Transfers The host country must not prevent a foreign investor from transferring money and property owned by the investor out of the host country nor prevent a foreign investor from freely transferring the Using the currency when transferring abroad. Both bilateral and multilateral investment agreements have clear regulations on the scope of capital transfers and profits. However, this is not an absolute right. The agreements recognize exceptions that allow the host country to limit the foreign investor’s right to such rights in cases such as to protect the interests of another entity; enforcement of judicial authorities or due to balance of payments difficulties country 2.4.3. Compensation in Amed of Conflict When investing abroad, investors may suffer losses that do not arise from subjective errors in the process of investing in production and business. The losses can arise from armed conflicts or from political instability in the host country ... (non-commercial losses). Judgments of the jurisdictions all agree that FPS will be applied when any action related to 12 violence occurs and requires the State to perform diligent obligations to prevent damage to investors. before the third party's wrongdoings such as compensating for damage, punishing individuals and organizations that cause damage to foreign investors. However, this obligation is not absolute, but the host country will take reasonable measures within its jurisdiction. 2.4.4. Subrogation This is an important part of the overseas investment guarantee regime, which is the guarantee that investors will be replaced by another entity to exercise their rights and obligations in investment relations when they encounter risks left side. On the side of the host country, the recognition of the subrogation measure demonstrates the political protection of the host country over the country where the investment is national, helps to strengthen friendship and cooperation between two governments in investment relations. 2.4.5. Settlement of disputes between Investor and Member State In most international investment agreements, there are provisions for the dispute settlement mechanism between foreign investors. Specifically, foreign investors will have the option of resolving the dispute, either in the courts of the host country, or to settle the dispute in international arbitration to seek protection against the violation of the host country. 2.4.6. Umbrella Clause The most generic version of most of the general terms is that “each contracting party is responsible for fulfilling all the obligations that that party assumes in the investment contract”. Interpretation of the term depends on the specific wording, common meaning, scope, subject and purpose of each agreement, as well as the history of negotiations or other intentions of the parties. In summary, the theoretical issues of investment protection in international investment agreements as analyzed above will cover the theory of investment protection under the ASEAN Agreements. ASEAN is a regional organization and an object of international law, so in terms of legal nature, ASEAN law is of international law nature and is part of international law. Therefore, the theoretical issues of investment protection under the ASEAN Investment Agreements also include the same contents as the theoretical issues of investment protection in international law. 13 CHAPTER 3 STATUS OF REGULATIONS AND PRACTICAL IMPLEMENTATION REGULATIONS ON INVESTMENT PROTECTION UNDER ASEAN AGREEMENTS ON INVESTMENT 3.1. Situation of regulations on investment protection under ASEAN agreements on investment On the basis of inheriting IGA measures as well as new requirements for the ASEAN investment region, the investment protection measures recognized by ACIA include: 3.1.1. Expropriation and Compensation With According to ACIA’s regulations, expropriation is done through two forms of direct expropriation and indirect expropriation. The expropriation of legal ownership meets the following four conditions: (i) for public purposes, (ii) non-discrimination, (iii) timely payment, full and efficient compensation and (iv) proper legal procedures. Illegal expropriation when the above four conditions are not fully satisfied. ACIA also does not recognize regulations on compensation in the event of illegal expropriation. Therefore, the issue of compensation will be determined on the basis of the rules of international law in general on the basis of consideration of the judgments of the jurisdictions. 3.1.2. Transfer Under the provisions of Clause 1, Article 13 of ACIA, ASEAN Investors are allowed to transfer capital, assets and profits with respect to their investments in and out of the territory of the country of receiving the investment, freely and without delay. AICA has made a provision that the recipient country has the right to impose restrictions on capital transactions of ASEAN Investors in the following cases: at the request of the International Monetary Fund (IMF ); when having balance of payments difficulties; In exceptional cases, the capital movement causes or threatens to cause a serious economic or financial impact on member state. 3.1.3. Compensation in Cases of Strife Under the provisions of Article 12 of ACIA, in case the investor's investment is damaged within the territory of the host country due to armed conflict or civil war or state of emergency of that country, member state investee will be responsible for compensating the foreign investor for damages caused by conflict, civil war or emergency or other forms of compensation of value on a no basis discrimination. 3.1.4. Subrogation The principle of subrogation in ACIA has adjusted the scope to expand to all areas and forms of investment. Article 15 of ACIA provides 14 that, if a member state or a competent authority of a member country (country of which the investor is a national) has made a payment to its investor under a a security obligation, either under an insurance contract or another form of indemnification granted by that country based on non- commercial risks to an investment by the investor, is the other Contracting Party (recipient country) must recognize this subrogation and transfer any title to the foreign investor’s investment. 3.1.5. Investment Dispute Between an Investor and a Member State ACIA has reserved all Part B, from Article 28 to Article 41, to recognize the legal issues on dispute settlement between the ASEAN Investor and the recipient member state including: the scope of dispute settlement; Dispute settlement agency and dispute settlement measures and procedures. 3.1.6. Comparison of provisions on investment protection in ASEAN Agreements with provisions on investment protection of a number of new generation free trade agreements If EVIPA becomes different when placed next to ACIA, CPTPP has many similarities with ACIA. The contents of the investment protection terms do not have a big difference, some are more modern to provide a clearer understanding of the terms but do not change the main content (these are similar to ACIA in both form and content). All three agreements contain provisions that address principles of the treatment of investors and investments, the issue of expropriation, compensation, and in particular, the dispute settlement mechanism between investors. Investor and host country, investors can protect their legitimate rights and interests by suing the host country to arbitration or arbitration tribunal (EVIPA) to request settlement of disputes. accept, claim benefits for yourself. 3.2. Implementation of ASEAN agreements on investment protection in a number of Member States In this section, the graduate student only conducts research on investment protection laws of ASEAN member countries that have their own investment laws, including: Cambodia, Indonesia, Myanmar, Laos, Philippines to evaluate the implementation. implementation of ASEAN Agreements on investment protection. Also the case of Vietnam will be studied in Chapter 4 of the thesis. 3.2.1. Law of Cambodia The Investment Law of Cambodia 1994 has quite specific provisions on the issue of investment protection in Chapter IV. Specifically: Firstly, in principle of protection Cambodian law stipulates that Investors will be treated in a non- discriminatory manner as provided for in the law, except for the issue of land ownership recognized in the Cambodian Constitution (Article 8). 15 Secondly, about protective measures + Not implementing a nationalization policy that adversely affects investors' private property in Cambodia (Article 9); + Do not impose price controls on products or services for which the investor has received prior approval from the Government (Article 10); + Allows investors to transfer capital and profits abroad to fulfill financial obligations associated with their investment activities; + For the settlement of disputes between the State and foreign investors will be resolved through consultation, mediation or the courts of Cambodia, or resolve according to any international rules relating to settlement. Dispute resolution is approved by the parties (Article 20). 3.2.2. Law of Indonesia In Indonesia, protection against investors was noted in the 2007 Investment Law, chapter V titled “Treatment against investors”, including: Firstly, in principle of protection + The Government will treat all investors of any country fairly to investment activities in Indonesia in accordance with the law. However, this treatment will not apply to investors of a country that has obtained incentives under agreements signed with Indonesia related to the customs union, free trade area, and Generally, monetary alliances, bilateral, regional and multilateral agreements between the Government of Indonesia and other countries note incentives in investment activities (Article 6). Secondly, about protective measures + The Government will not take measures to nationalize or take away the ownership of investors' property rights, unless required by law and will compensate the amount calculated according to market value. If the parties fail to reach an agreement for compensation, the dispute will be resolved through arbitration (Article 7). + Investors can transfer assets owned by them to parties in accordance with laws and regulations. The Government may take legal actions such as warnings, property freezing, revocation of business permits, claims for damages and other remedies in accordance with the law to avoid loss to the country. + In case of dispute, it will be resolved at international arbitration selected by the parties. 3.2.3. Law of Myanmar The The contents of investment protection are provided for in the Myanmar Investment Law 2016 including: Firstly, in principle of protection + National treatment, most favored nation treatment to foreign investors and their direct investments in the expansion, management, operation, sale or disposition of direct investments; 16 + Fair and Equitable Treatment (FET) in obtaining information regarding any measure or decision that has a significant impact on an investor or their direct investment (Article 48 ). Secondly, about protective measures + The Government guarantees not to take any measures to directly or indirectly expropriate or have a similar effect on the termination of an investment, except for the following conditions: Really necessary for the benefit of Myanmar or a Myanmar citizen; in a non-discriminatory manner; legal compliance; compensate promptly, in good faith and satisfactorily (Article 52). + Foreign investors can transfer abroad the funds related to the investment under the Investment Law in freely used currency. The transfer and receipt of loans will be performed with the approval of the Central Bank of Myanmar (Article 57). + On the issue of dispute resolution, a Committee will be established to manage a complaints mechanism to resolve and prevent the occurrence of disputes. Before a dispute can be brought to court or arbitration, all disputing parties will use efforts to resolve the dispute amicably. 3.2.4. Law of Laos In Laos, investment regulations in general and investment protection in particular are provided for in the Investment Promotion Law 2016, including: Firstly, in principle of protection The State protects the legitimate rights, interests and equality of all domestic and foreign investment parties under the Law of Laos, agreements and agreements to which Laos is a party (Article 22). Secondly, about protective measures + The Government protects the legal investment of investors against acts of expropriation, confiscation or nationalization by administrative measures. In the case of public purposes, the investor will be compensated by the actual investment value at the market price at the time of transfer of the use as agreed by the parties (Article 23); + The Government recognizes and protects intellectual property rights of investors in accordance with the Law on Intellectual Property of Laos, international treaties and agreements to which Laos is a member (Article 24); + Investors have the right to repatriate capital, assets and income through banks located in Laos after paying all obligations, taxes and other fees as prescribed by law. + Disputes related to investment activities can be resolved in the following forms: Negotiation; administrative procedures; dispute 17 settlement by Laos Economic Dispute Settlement Agency; domestic or international tribunal to which Laos is a party (Article 93). 3.2.5. Law of the Philippines The provisions The provisions on investment protection are recorded in the Omnibus Investment Code, including the following contents: + Foreign investors are entitled to repatriate the entire liquidation amount of the investment in the original investment currency at the exchange rate at the time of repatriation (Point a, Article 38). + Foreign investors have the right to transfer their income from investment activities in the currency of the foreground investment at the exchange rate at the time of income transfer (Point b, Article 38). + Transfer of capital and profits for payment of foreign loans (Point c, Article 38). + The investor will not be deprived of the ownership of an investment property or assets by the Government, excep