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Tuesday, 17/08/2021

Petitions settelement arising from investor selection activities and dispute resolution under PPP Law and the Decree 35/2021/ND-CP guiding PPP Law

Law on public-private partnership investment No. 64/2020/QH14 promulgated by the National Assembly on 18 June 2020 (“PPP Law”) takes effect from 1 January 2021. Decree 35/2021/ND-CP issued by the Government on 29 March 2021 detailing and guiding the implementation of the PPP Law (“Decree 35”) takes effect from 29 March 2021.

Petitions settlement arising from investor selection activities and the dispute resolution between the State, investors, PPP project enterprises, or other related stakeholders are specified in the PPP Law and Decree 35 with the following key takeaways:

  • Who is entitled to file petitions. (i) a bidding investor; (ii) an investor whose name is on The National Bidding Network System for the petition about the pre-qualification documents, negotiation documents, or bidding documents according to Article 73.1 (a) and Article 73.2 (a) of Decree 35.
  • Rights of investors. (i) submit petitions regarding the investor selection process and results to the bid solicitors, and competent authorities or (ii) initiate Court proceedings within the statute of limitations according to Article 95.1(a) and Article 95.1(b) of PPP Law.
  • Conditions for petitions settlement. (i) the petition form shall be signed and sealed by the legal representative of the investor or the person that signs the application submission form or bid form; (ii) the procuring entity and competent authority or working team of Dispute Settlement Advisory Board receives the petition; (iii) the investor complies with the petition handling process and (iv) the issue in the petitions has not been brought to the Court by the investor according to Article 73 of Decree 35.
  • Petitions settlement process. The investor sends a written petition to the procuring entity. The procuring entity shall send a written document on petition settlement to the investor within the required term. The investor shall have the right to file a petition to the competent authority if (i) the procuring entity does not have a written document on petition settlement or (ii) the investor disagrees about petition settlement results according to Article 96.1 (c) and Article 96.2 (c) of PPP Law.
  • Principle. The competent authorities will not consider the petition if (i) the investor does not comply with the petition settlement process according to Article 96.3 of PPP Law and (ii) the investor has brought the petition to the Court according to Article 95.2 of PPP Law.
  • Dispute resolution methods for disputes between competent authorities/procuring entity and (domestic and foreign) investors.(i) negotiation; (ii) mediation; (iii) Vietnamese arbitration; (iv) Vietnamese Court according to Article 97.1 and Article 97.2 of PPP Law, unless otherwise agreed under contracts or international treaties to which Vietnam is a signatory.
  • Dispute resolution methods for disputes between investors (involving at least one foreign investor). (i) negotiation; (ii) mediation; (iii) Vietnamese arbitration; (iv) Vietnamese Court; (v) Foreign arbitration; (vi) International arbitration; (vii) Arbitration established under agreements between the disputing parties according to Article 97.1, Article 97.2, Article 97.3 and Article 97.4 of PPP Law.

IEREA 17082021

Related Posts: https://www.pecc3.com.vn/en/tackling-dispute-resolution-with-lessons-from-india/

Reported by Pham Tran Bao Khanh/Nguyen Tuan Phat (Legal Department PECC3)

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