The EU-Vietnam Investment
Protection Agreement (EVIPA) represented the culmination of three years of
negotiations between the EU and Vietnam. Although it remains to be ratified, it
promises to have an impact on the international investment treaty landscape.
The treaty contains innovations ranging from its definition of the
substantive protections afforded to foreign investors to its definition
of ‘investments’ and ‘investors’ that may qualify for those protections, as
well as the procedural modalities for the treatment of possible disputes. Its
most distinctive trait, however, is its establishment of a semi-permanent
adjudicatory body akin to an investment court in replacement of the arbitration
model envisaged by the vast majority of investment treaties over the past
several decades. Rather than attempt to reform, the EVIPA drafters have done tabula rasa and opted for revolution instead. The EVIPA’S envisaged
method to select, appoint, and remunerate the members of that body – both at
the first instance level and at the appellate level – represents an abrupt and
profound abandonment of the traditional arbitration model so frequently and presently
used in international disputes around the world. The EVIPA may thus present an
opportunity to test an alternative dispute resolution system and thus to aid in
determining the most effective and appropriate method to resolve the
international investor-State disputes of the future.