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

• DOI: https://doi.org/10.1108/JITLP-07-2022-0031
• Published date: 13 September 2022
• Date: 13 September 2022
• Pages: 240-254
• Subject Matter: Strategy,International business,International business law,Economics,International economics,International trade
• Author: Tho Thi Anh Nguyen

Provisions on frivolous claims in

the European Union –Vietnam

investment protection

agreement –would they

be benefits to Vietnam?

Tho Thi Anh Nguyen

Faculty of International Trade and Business Law,

Hanoi Law University, Hanoi, Vietnam

Abstract

Purpose –This paper aims to examinetwo issues: whether provisions on frivolous claimsin the European

Union (EU)–Vietnam InvestmentProtection Agreement (EVIPA) would be Vietnam’s intrinsicdemand, and

to what extent,Vietnam may enjoy the benefits from these provisions.

Design/methodology/approach –This paper combines both doctrinal legal analysis and policy

research. It offers an in-depthcase study of the provisions on frivolous claims in the EVIPA, comparesthem

with those of other existinginternational investment agreements and arbitrationsrules, examines how similar

provisions in these instruments are interpreted in available practical international investment disputes,

uncovers the Vietnam’s positionthrough interviewing Vietnamese senior experts, who were membersof the

Vietnamese delegation negotiating the EVIPA, and through available collected data and then evaluates

whetherthese provisions may be favourable to this country.

Findings –Whilethenewinvestor-statedisputesettlement(ISDS)mechanismintheEVIPAcanbeviewedas

explicit evidence of the EU’s achievement, it may also be Vietnam’sbenefits 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 whe ther 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’si ntrinsic demands for defending against unfounded frivolous cases.

Originality/value –This is the first time the EU concluded an investment treaty containing innovative

ISDS provisions with a developingcountry. This paper therefore may help envisage Vietnam’sperspective

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’sfindings mean for

researchin investmentlaw as well as for policymakers as far as the frivolous cases are concerned.

Keywords Frivolous claims, EVIPA, Benefits, Vietnam

Paper type Research paper

1. Introduction

The European Union (EU) has long been Vietnam’s strategic trade partner. A free trade

agreement between the EU and Vietnam can strengthen political, economicand cultural cohesion,

The author would like to send special thanks to Ms. Vu Thi Chau Quynh, Deputy Director General,

Department of Legislation, The Ministry of Planning and Investment, Vietnam for her valuable opinions.

Also, the author would like to thank the anonymous Reviewers and Editorsfor their helpful comments and

corrections on the manuscripts. The views and opinions expressed in this article are those of the author only

and do not necessarily reflect the officialpolicy or position of any agency of the Vietnamese Government.

JITLP

21,3

240

Received28 July 2022

Revised20 August 2022

Accepted21 August 2022

Journalof International Trade

Lawand Policy

Vol.21 No. 3, 2022

pp. 240-254

© Emerald Publishing Limited

1477-0024

DOI 10.1108/JITLP-07-2022-0031

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