Preamble and the Right-to-Regulate Clause in the EVIPA
摘要
Chapter 1 briefly introduced the intertwined concepts of sustainable development and the right to regulate. In fact, sustainable development is inherently embedded in the right to regulate, particularly through environmental protection, which constitutes one of the three pillars of sustainable development. Therefore, this chapter examines these two concepts collectively, although each is explored in separate sections. Historically, in earlier IIAs, the right to regulate was commonly assessed in the context of regulatory measures accused of violating indirect expropriation, FET, or NT. However, it was not typically considered as an independent clause on the right to regulate. Regarding such an independent regulatory clause, it remains to be seen what precedents the ICS tribunal will rely on. Therefore, the evaluation of the EVIPA’s provisions is primarily based on existing observations drawn from relevant ISDS practice. Furthermore, similar to the case of indirect expropriation or FET, the focus on regulatory measures involves evaluating how these measures have been implemented, placing requirements on the host state related to good faith and transparency. This chapter will not reevaluate these aspects concerning Vietnam’s domestic regulations. Instead, it examines the experience accumulated from ISDS practice. It anticipates the approaches that ICS tribunals may adopt to balance public and private interests when reviewing the provision on the right to regulate included in the EVIPA.