Lawyer in Vietnam & Myanmar Dr. Oliver Massmann - Alternative Dispute Resolution in Vietnam AND MYANMAR — THE PRESENT— THE FUTURE — THE GOLDEN RULE what you must know

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ALTERNATIVE DISPUTE RESOLUTION IN
VIETNAM AND MYANMAR — THE PRESENT
— THE FUTURE — THE GOLDEN RULE
WHAT YOU MUST KNOW:

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AGENDA
• VIETNAM’S ECONOMIC OVERVIEW
• VIETNAM’S INTERGRATION TO REGIONAL AND
WORLD’S ECONOMY
• INVESTOR-STATE DISPUTE SETTLEMENT UNDER
THE EU- VIETNAM INVESTMENT PROTECTION
AGREEMENT (“EVIPA”) AND THE
COMPREHENSIVE AND PROGRESSIVE TRANS-
PACIFIC PARTNERSHIP (“CPTPP”)
• MYANMAR’S ECONOMIC OVERVIEW
• DISPUTE SETTLEMENT BY ARBITRATION IN
MYANMAR
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Vietnam 2018 Economy at a glance
• GDP: US$220.3 billion
• GDP per capita: US$2,385
• GDP Growth: 7.08% (record breaking since
2008)
• Inflation: 3.54%
• Population: About 96.2 million (April 2019)
• Labor force aged 15 and above: 55.4 million
• Total export and import turnover: : >US$482
billion (14% increase compared with 2017)
• Regional Minimum wage (Region I): VND 4.180
million (US$ 180) per month (Jan 2019)
• Vietnam’s average age: 31 years old
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Welcome to the most dynamic country on this
planet : Vietnam!
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Fastest-growing ASEAN economy
in 2018 and 2019, as in 2017 –
Standard Chartered Bank predicts

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Increasing Foreign Direct Investment
21.92
24.1 24.4
35.88 35.48
18.47
0
5
10
15
20
25
30
35
40
2014 2015 2016 2017 2018 6 first months
of 2019
Foreign Direct InvestmentValue (2014-2018) (billion USD)
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Vietnam’s super rich population is growing
faster than anywhere else….
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… and is on track to continue leading
the growth in the next decade

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Communist Vietnam Has More Millionaires
Than Capitalist Philippines
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Female Business Ownership
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* Similar to Thailand, Hong Kong and Switzerland
** Far above Singapore, Myanmar and Indonesia
Source: Mastercard Index of Women Entrepreneurs 2018

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VIETNAM’S INTEGRATION TO
REGIONAL AND INTERNATIONAL
ECONOMY
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Vietnam’s Free Trade Agreements
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ASEAN - China
ASEAN - Korea
ATIGA
ASEAN - India
ASEAN – Australia –
New Zealand
ASEAN - Japan
RCEP
Vietnam - Chile
Vietnam - Korea
Vietnam – Eurasian
Economic Union
Vietnam - EU
Vietnam - EFTA
CPTPP
ASEAN – Hong Kong
Vietnam - Israel
Vietnam - Japan
Signed
In negotiation/
Negotiation concluded
In negotiation

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Comprehensive and Progressive Trans-Pacific
Partnership (“CPTPP”)
• On 8 March 2018, the CPTPP was finally signed in Chile. The
CPTPP accounts for 495 million people representing 13.5% of the
world total economic output - worth a total of $10 trillion.
• CPTPP will lead to an increase of 1.32% in Vietnam’s GDP
• Vietnam will have access to newer markets and can expand their
exports to countries such as Canada, Mexico, and Peru with whom
it does not have a trade agreement.
• Opportunity for Vietnam to re-structure the export market
portfolio, not rely too much on the United States.
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Investor-state dispute settlement (ISDS)
• Through binding arbitration
• Arbitral awards are final, binding and fully enforceable in CPTPP
countries
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EU – Vietnam Free Trade Agreement
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EVFTA AND IPA
• The EVFTA is a new generation free trade agreement between Vietnam
and 28 EU member countries
• On 2nd December 2015, both Vietnam and the EU concluded the
negotiations.
• On 26 June 2018, the EVFTA was divided into 2 agreements in terms of
trade and investment following the European Court of Justice’s opinion
on the EU – Singapore FTA
• The EVFTA will cover trade issues while investment protection and
investment-related dispute settlement will be under the IPA.
• On 30th June, the EVFTA and the IPA were signed in Hanoi.
• The EVFTA is the first comprehensive and ambitious trade and
investment agreements that the EU has ever concluded with a
developing country in Asia
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EVFTA – Benefits for Vietnam
• Vietnam’s annual economic expansions rate may grow an additional 15%
every year (said Tomaso Andreatta, representative of the European Business
Association in Vietnam (EuroCham), at the Vietnam Business Forum 2014)
• Tariffs for most of Vietnamese export product to the EU will gradually
reduce to 0% and Vietnam’s export to EU is expected to grow about 35%
for next few years
• The real wages of skilled laborers may increase by up to 12% while real
salary of common workers may rise by 13%
• The EVFTA is the legal framework for a more stable relationship in bilateral
trade for Vietnam when competing in the international market
• The EVFTA will generate greater effects, e.g. increased quality of
investment flows from EU, acceleration of the process of sharing expertise
and transfer of green technology and the creation of more employment
activities
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EVIPA
• Applies to covered investment and its investors
“Investment” means every kind of asset which is owned or controlled,
directly or indirectly, by an investor of EU/ Vietnam in the territory of
Vietnam/ EU, which has the characteristics of an investment (for
example, commitment of capital or other resources, the expectation of
gain or profit, the assumption of risk and a certain duration).
• Investment protection
• Investor-to-State dispute settlement mechanism (“ISDS”)
• EVIPA will replace all bilateral investment agreements between
Vietnam and other EU members
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IPA - Conflict Resolution
• IPA secures a modern reformed investment dispute resolution standard
• A standing international and fully independent investment tribunal will
be competent to all conflicts about investment protection provisions
• Decisions of the Tribunal can be appealed to a permanent Appeal
Tribunal
• UNCITRAL rules on transparency in treaty-based investor-state
arbitration are implemented which guarantees a high standard of juridical
transparency
• A final award must be enforced and cannot be questioned by local
jurisdiction
• 5 year transitional period for Vietnam. However, you could include a
change-law-provision in the contract for future settlement
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ISDS under EVIPA and CPTPP – What are the
differences? (1)
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Is arbitration the
only option to
settle the dispute?
Consultation Mediation
* The EVIPA has more detailed and clearer regulations on amicable resolution in
general and consultation in particular than the CPTPP.
* Amicable measures in the CPTPP are traditional and similar to existing international
investment agreements while EVIPA contains more new points.

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ISDS under EVIPA and CPTPP – What are the
differences? (2)
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Arbitration
CPTPP EVIPA
• Flexibility in choice of forum and
governing rule
• One- stage arbitration (i.e., final
award
• The final award is enforced
automatically (under ICSID
Convention) or must be
recognized (under 1958 New
York Convention and Inter-
American Convention). No
transitional period applies for
Vietnam.
• No choice of forum or governing
rule
• Two-stage arbitration (Tribunal
and Appeal Tribunal) (similar to
the WTO dispute settlement
system)
• The final award is binding as if it
were a final judgement of a court
in each party. 5-year transitional
period applies for Vietnam
according to 1958 New York
Convention.

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DISPUTE RESOLUTION BY
ARBITRATION IN MYANMAR
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First impressions from Myanmar
Confucius never arrived!

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Lifting of U.S. sanctions
• On 7 October 2016 President Barack Obama issued an
executive order terminating the national emergency
relating to Myanmar (the Burma related executive
orders).

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Myanmar – New Government since 01st April 2016
• The new Government of Myanmar is led by the National League
for Democracy (“NLD”). The NLD is led by Daw Aung San Suu
Kyi, however, she is constitutionally barred from holding the
office of the President, since her children are British Citizens.
• The Presidency is held by U Htin Kyaw, a close confident of Daw
Aung San Suu Kyi, and she herself is holding the newly created
position of State Counsellor.

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MYANMAR: Challenges
• The challenges of Myanmar:
 US$1,500 : Average productivity of a worker in Myanmar today,
about 70% below that of benchmark Asian countries
 4 years of average schooling in Myanmar
 10 million additional people to absorb in Myanmar large cities by
2030
 US$650 billion: Total investment needed by 2030 to support
growth potential, US$320 billion in infrastructure alone
Source: McKinsey&Company

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MYANMAR: Opportunities
 Potential to achieve US$ 200 billion+ GDP in 2020, over four times as
high as today
 With spending potentially tripling from US$ 35 billion to US$100 billion,
an estimated 10 million middle-class consumers in 2030 from 2.5 million
in 2010
 Potential to create more than 10 million additional non-agricultural jobs
by 2030
 500 million people living in countries bordering Myanmar and the closest
parts of China and India, a huge potential market
Source: McKinsey&Company

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Dispute settlement by arbitration in Myanmar
• Myanmar formally became one of the members of the New York
Convention on 15th July 2013.
• Myanmar adopted the new Arbitration Law on 5th January 2016.
• Before its accession to the New York Convention, Myanmar
practiced Arbitration according to the 1944 Arbitration Act.
– Significant features of 1944 Arbitration Act included the distinctive role of
Courts in Arbitration and the enforceability of awards in Myanmar. In the
1944 Act, a strong influence of Courts in arbitral matters can be seen
distinctively.
– Enforceability of foreign awards under Arbitration Act 1944 – was
doubtful, since the 1944 Arbitration Act only provided for domestic
arbitration and did not provide a framework for the recognition and
enforcement of foreign arbitral awards.
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The new Arbitration Law
• Is primarily based on the United Nations Commission on
International Trade Law (UNCITRAL) rules.
• Makes a distinction between local arbitration, foreign arbitration,
and the recognition of foreign awards.
• Enforcement of the foreign arbitral award may be refused if the
court finds that:
– the subject-matter of the dispute is not capable of settlement by arbitration
under the law of the Republic of the Union of Myanmar; or
– the enforcement of the award would be contrary to the national interest of
the Republic of the Union of Myanmar.
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Enforcement of foreign arbitral award – Way forward
• The meaning of the term “National Interest” is not clearly
defined
• The provision is yet to be tested.
• Future for potential investors
– Enforceable arbitral awards in Myanmar (especially those investors
that are considering to enter into agreements with parties who have
sizeable assets in Myanmar)
– Providing for an internationally accepted standard of arbitration
procedure
– Limiting judicial interference in arbitration proceedings
– Time sensitive recourse – limited grounds of rejection
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CONNECTIONS ARE BUSINESS
PLEASE CONNECT WITH ME ON
LINKEDIN:
OLIVER MASSMANN
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WHEREVER YOU ARE - BE ALL THERE
Jim Elliot
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References (1)
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References (2)
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References (3)
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References (4)
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