Lawyer in Vietnam Dr. Oliver Massmann – INTERVIEW WITH ViTV CHANNEL ON MAJOR IMPACT OF INVESTMENT PROTECTION AGREEMENT AND FREE TRADE AGREEMENT EUROPEAN UNION AND VIETNAM

1 – Viet Nam and the EU officially concluded the legal review process of the Vietnam-EU Free Trade Agreement as well as agreed on the contents of the Vietnam-EU Agreement on Investment Protection (IPA). How do you assess the context of this action?

The legal review is concluded in the context where the EU continues to be Vietnam’s 3rd largest trading partner and the 2nd largest export market of Vietnam. Two-way trade has increased by 12 times from USD4.1 billion in 2000 to over USD50.4 billion in 2017.
In addition, Vietnam’s GDP in 2017 reached 6.81%, a record breaking in 10 years. Recent Vietnam’s economic developments and better access to the EU markets have been one of the underlying reasons that both sides wanted to speed up the finalization of the agreement, this is done now.

2- Why does the EU want to split EVFTA and IPA into two separate agreements?

It is due to a change in the EU’s ratification procedures of free trade agreements. Specifically, as a result of the ECJ’s opinion on the EU- Singapore FTA, the Union will have exclusive competence for the common commercial policy, while issues related to non-FDI investment and investor-to-state dispute settlement will be shared competence between the Union and the member states. Thus, in order to reap the benefits of the EVFTA as soon as possible, the commercial part (EVFTA) will be proceeded first pending the finalization of the IPA and its ratification of member states’ parliaments, which takes longer and harder to estimate timing.

3- Could you please give us more detail about the IPA agreement? How will Vietnam businessmen be affected by this agreement? (Advantages and challenges)

In short, the IPA will provide levels of legal certainty for foreign investors that are unmatched in FDI history in Vietnam. The basic content of the IPA will be the ISDS mechanism. In disputes regarding investment (for example, expropriation without compensation, discrimination of investment) between the investor and the host state, an investor is allowed to bring the dispute to the Investment Tribunal for settlement. The final arbitral award is binding and enforceable without any question from the local courts regarding its validity. This is an advantage for European investors considering the fact that the percentage of annulled foreign arbitral awards in Vietnam remains relatively high for different reasons.

4- What is the next step to bring EVFTA into effect?

The EVFTA will be translated into Vietnamese and main languages of the EU. Then it will be submitted to ratification by competent body of each party. For Vietnam, it will be the National Assembly who ratifies the EVFTA. In the EU, the Commission has already submitted a proposal on signing and ratification of the EVFTA to the EU Council and published all texts.

5. For EVFTA, although not formally effective, this agreement has had a positive impact on relations between the EU and Vietnam. How do you rate this?

Nearly all customs duties – over 99% of the tariff lines will be eliminated for Vietnam. Vietnam’s products will have great opportunities to access EU’s market at more competitive price. According to MOIT Minister Tran Tuan Anh, exports from Vietnam into the EU could increase by $16 billion in the first one or two years, and reach $75-76 billion in 2028. The deal would also benefit the EU, increasing the region’s income by $34.4 billion in the long run.

6- The EU said it would help Vietnam to improve its capacity to effectively utilize the FTAs after being signed and put into practice. So what are the weaknesses that Vietnam needs to improve to be ready for EVFTA and IPA?

Vietnam needs to review the whole domestic legal framework to make sure there is no inconsistency with the EVFTA. The legal framework should also be ready to fully implement the EVFTA so as to avoid further disputes or bottlenecks in implementation.
In addition, domestic enterprises are still not familiar with the EVFTA. To take fully advantage of the agreement, Vietnam needs to conduct several trainings and seminars so that they are aware of the EVFTA’s benefits and how to utilize the agreement for their own business. Small and medium enterprises also need to improve management quality, workforce skills, competitiveness, etc. to survive in the domestic market before the wave of EU investment.

7 – How do you expect the official time that the EVFTA will take effect?

The EVFTA has been signed and will be ratified at the beginning of next year and will take effect in the same year 2019. It will contribute to make Vietnam the next manufacturing hub in Asia because China and the EU do not have a Free Trade Agreement. Vietnam will be “the next China” with regard to manufacturing for decades to come.
Please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com if you have any questions or want to know more details on the above. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.