Pháp luật về đầu tư theo hình thức đối tác công tư ở việt nam tt tieng anh

Purpose and mission of the research The research objective of the thesis is to clarify legal issues of investment in the form of public-private partnership in Vietnam; on that basis, ma

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

ĐOÀN THỊ HẢI YẾN

LAWS ON INVESTMENT IN THE FORM OF

PUBLIC-PRIVATE PARTNERSHIP IN VIETNAM

SUMMARY OF DOCTORAL THESIS ON LAW

Specialty: Economic Law Code: 9380107

Academic Supervisors:

1 Dr.Nguyễn Văn Tuyến

2 Dr.Võ Đình Toàn

HÀ NỘI - 2020

PREAMBLE

1 The urgency of the research topic

In the context of the current economy, countries in the world in general and Vietnam in particular have myriad difficulties in ensuring the revenue of the state budget with a view to meeting the demand for funding, channeled into public affairs, as well as allocating money for the construction and establishment of infrastructure systems In order to reduce the burden on the state budget and increase investment resources for infrastructure construction, one of the measures applied is to establish a partnership between the state and the private sector This is also called public - private partnership (hereinafter referred to as PPP)

In Vietnam, public-private partnerships in infrastructure construction investment have been in place since 1994 through energy and telecommunications projects based on investment models such as BOT, BT, BTO However, the application of these approaches seems to be only experimental and theoretically, the BOT, BT or BTO investment methods in previous years have not reflected the true nature of this investment model under public-private partnership contract Therefore, starting from 2011, with the promulgation of the Prime Minister's Decision No 71 / QD-TTg on November 9, 2010, promulgating the Regulation on pilot investment in the form of public - private partnership, investment mechanisms under the public-private partnership model have just begun to be implemented

in Vietnam In essence, BOT is one of the PPP forms, but the coexistence of many divergent legal documents simultaneously adjusting of public-private partnerships has caused many difficulties for the application and legislative enactment process in practice In this context, Decree No 15/2015 / ND-CP of the Government was issued, followed by Decree No 63/2018 / ND-CP of the Government

to ensure the consistency of the legal system in regulating private partnership Nevertheless, because this is a relatively new field in Vietnam and the number of practical application cases has been modest, the laws providing for this relationship remain inadequate Therefore, the search for a genuinely effective partnership and dialogue mechanism between the State and private investors in Vietnam has faced certain problems and requires further study, investigation and viable solutions

public-From the aforementioned practice, I settle on the topic: "Laws

on investment in the form of public-private partnership in Vietnam" for my doctoral thesis

2 Purpose and mission of the research

The research objective of the thesis is to clarify legal issues of investment in the form of public-private partnership in Vietnam; on that basis, make recommendations on building a legal model of investment in the form of public-private partnership in Vietnam in the current period

To achieve the aforementioned goal, the thesis has the following tasks:

First, study the theory of investment in the form of

public-private partnership and the laws on investment under public-public-private partnership

Second, analyze and assess the current status of the laws on

investment under public-private partnership in Vietnam

Third, research and make a comparison of laws on investment

in the form of public-private partnership in Vietnam with some other countries around the world

Fourth, propose directions to develop and improve the laws on

investment under public-private partnership in Vietnam

3 Subject and scope of the research

The research subjects of the thesis are theoretical points of

view, doctrines on investment in the form of public-private partnerships and the theories of legal adjustment to investment relationships under public-private partnerships; legal provisions on investment in the form of public-private partnership of Vietnam and some other countries; practical implementation of the laws on investment in the form of public-private partnership in Vietnam The research scope of the thesis focuses on the following issues:

- Scope of research content: Theoretically, the author focuses

on clarifying the nature of investment relationships in the form of public-private partnerships (with the specific characteristic being an asymmetric relationship between the participating parties - public and private partners); specify ways of utilizing the laws to regulate investment relations in the form of public-private partnerships (in which clarifies the mechanisms for investor selection, payment and contra entry practice for investors) In terms of practicality, the author focuses on assessing the status of the laws on investment in the form of public-private partnership in Vietnam, pointing out the limitations and shortcomings of this legal field and thereby proposing recommendations to strengthen the laws on investment in the form of public-private partnership in Vietnam

- Regarding the scope of time and space of the research:

In terms of time: The thesis focuses on studying the current legal provisions on public-private partnership investment

In terms of space: The thesis examines the legal provisions on investment in the form of public-private partnership in Vietnam

4 Methodology and research methods

The author studies the topic based on dialectical materialism and historical materialism On that basis, the author employs some certain research methods of social sciences, including: Methods of analysis, methods of synthesis, comparison methods and methods of

normative logical analysis

5 New contributions of the thesis

As an intensive, systematic and comprehensive scientific study

of laws on public-private partnership investment in Vietnam, the thesis has the following major new contributions:

Firstly, the thesis systematically studies theoretical issues of

investment in the form of public-private partnership and the laws on investment in the form of public-private partnership The thesis analyzes the concept, characteristics and content of this mode of investment

Secondly, the thesis has pointed out the nature of the

investment relationship in the form of public-private partnership, which is inherently an asymmetric relationship between the participating parties (Government and Private Sector), in which the parties establish the partnership based on the signing of project contracts to achieve the goals that each party pursues

Thirdly, the thesis has detailed the roles, functions, tasks as

well as the advantages of the parties participating in this investment relationship The participation of the State through competent state agencies and private investors through contracts will promote the strengths of each party, contributing to the successful implementation

of PPP projects

Fourthly, the thesis has clarified that investors in PPP projects

are organizations and pointed out criteria to select investors capable

of implementing projects The thesis also proves that the regulation that state enterprises are entitled to participate in PPP projects as investors is inconsistent with the nature of investment relations in the form of PPP

Fifth, the dissertation has demonstrated the limitations in the

laws on bidding to select investors, which are still inadequate and necessitate the change to online bidding to ensure the publicity,

transparency in the process of selecting investors

Sixthly, the thesis has proved that the settlement of project

work under the current law provisions for PPP projects is not suited

to this form of investment and needs to be changed

Seventhly, the thesis has demonstrated the need for additional

regulations to ensure state support for PPP projects in order to attract investors' participation, thereby contributing to risk sharing between the State and the investors

Eighthly, based on the limitations and shortcomings of current

stipulations, the thesis has proposed solutions to help complete the laws on investment in the form of public-private partnership in Vietnam in the current period

6 Theoretical and practical meanings of the thesis

- The thesis is an intensive, systematic and comprehensive scientific study to solve practical and core theoretical issues of investment in the form of public-private partnership

- The thesis is a useful resource for the authorized state agencies in evaluating the effectiveness of the legal provisions on investment in the form of public-private partnership, forming a basis for perfecting the laws in the near future

- The thesis is also a valuable source of materials for institutions specialized in scientific research, teaching and learning about laws on investment in the form of public-private partnership

- With the theoretical and practical bases drawn from the research process, the solutions and recommendations given by the thesis are of reference value to the competent state agencies in the process of completing laws on investment in the form of public-private partnership

7 The structure of the thesis

Alongside the preamble, conclusion and list of references, the thesis is designed to include:

Part 1: Overview of research situation related to the thesis topic

Part 2: The content of the thesis comprises 3 chapters:

- Chapter 1: Theoretical issues of investment in the form of public-private partnership and the laws on investment in the form of public-private partnership

- Chapter 2: Legislative practice regarding the laws on private partnership investment in Vietnam

public Chapter 3: Requirements and solutions to perfecting the laws

on investment in the form of public - private partnership in Vietnam

Part One OVERVIEW OF RESEARCH SITUATION RELATED TO THE THESIS TOPIC

1 Assessing the research situation related to the thesis topic and the direction of deploying the thesis’s research topic

Through surveying the research situation related to the thesis topic, the author draws some notions and assessments as follows:

1.1 The theoretical and practical results related to the thesis topic

1.1.1 The theoretical and practical results of other research work related to investment in the form of public-private partnership

In theoretical aspect: Other researchers have mentioned, analyzed and clarified several theoretical issues about investment in the form of public-private partnership such as the concept, characteristics and the role of this investment form in attracting investment capital into infrastructure and public services

In practical aspect: Other researchers have mentioned the practice of investing in the form of public-private partnerships of typical countries in the world, these research results are of great importance to the author and the thesis, having fully generalized the

practice of drafting and implementing laws on investment under this form in the world, thereby giving the author a basis for compraring, collating and reviewing the status of Vietnamese laws and proposing some research questions and solutions to drafting a Law on Investment in the form of public-private partnership in Vietnam

1.1.2 The theoretical and practical results of other research work related to the topic of laws on investment in the form of public- private partnership

- In theoretical aspect: The research work of foreign scholars about laws on investment in the form of public-private partnership mentioned and analyzed on the legal status and practical application

of the law in some typical countries In addition, scholars also pointed out the lessons learned about legal adjustment to this mode of investment in those countries This is a precious resource for the thesis author to inherit and develop in the process of solving the requirements of the thesis On the other hand, domestic research work about laws on investment in the form of public-private partnership have also initially approached and analyzed the investment practice in the form of public - private partnership in theoretical and practical perspectives In which, most of the work focus on studying theoretical issues of the laws governing BOT contracts such as the nature, characteristics and roles of the laws on BOT contracts These analyzes will continue to be studied, evaluated, commented by the thesis author I will also make my own views on the theoretical basis and the current status of Vietnam's laws on investment under public - private partnership

- In practical aspect: Experimental research work abroad on PPP in the world is plentiful, with many important results having been published Specifically, studies claim that there exists no standard PPP model and each country has its own strategy depending

on its context, legislative institutions, funding and the nature of the

project

Meanwhile, domestic research on the practice of implementing the laws on investment in the form of public - private partnership in Vietnam have focused on practical research on the implementation of the laws on BOT contracts Thereby, the studies have systematically analyzed and evaluated the legal provisions on the BOT contracts, pointing out both suitable and limited and inadequate points, from which making recommendations to perfect the legislation on BOT contracts in Vietnam

1.2 Issues related to the thesis topic which have not been solved by published research work, or have been examined but not yet satisfactorily, or still sparked different opinions that need to be further studied in the thesis

Firstly, theoretically, there have been many studies on the

nature of investment relations in the form of public-private partnership but mainly from an economic perspective; under the legal

comprehensively about investment relations in the form of private partnerships, especially in terms of building a rule of law state and international integration

public-Secondly, in practical terms, there have been studies on the

current state of the law on investment in the form of public-private partnerships but have not studied and assessed comprehensively, especially not yet indicated fully and analyzed profoundly the limitations and inadequacies of the current laws on investment in the

complete the legal framework on investment in the form of private partnership in Vietnam today, on that basis

public-2 Research theory, research questions, research hypotheses

2.1 Research theory

The thesis content is developed based on the general theory of

investment, in which the focus is on the theory of investment form in the form of public-private partnership

Public-private partnership investment form is carried out with the participation of public and private partners; without one of the two parties, it is impossible to implement this invesment method Now, the invesment only takes the form of public investment or private investment

Simultaneouly, the thesis is also based on the general theory of contracts

2.2 Research question

Based on the results of evaluating the research situation on the topic, as well as the proposed research orientation of the thesis, the author identifies the main research questions and hypotheses that need to be justified in the thesis as follows:

The study was conducted to find the answer to a question:

“What are the limitations of the laws on investment in the form of public-private partnership in Vietnam, which need to be handled with

to ensure legal provisions on PPP genuinely promote public-private partnership investment in Vietnam?” To find the answer to this question, the thesis will research to find answers to the following small questions:

- What is the legal nature of investment relations in the form of public-private partnerships?

- How should the law regulating investment relations in the form of public-private partnership?

- Should the establishment of investment contracts be decided

by the parties at their discretion or under the direction of the State?

Do the parties involved in the investment contracts have equal legal status? Does Vietnamese laws regulating entities participating in this relationship guarantee legitimate rights and interests for the parties?

- Are the order and procedures for investment in accordance with the current laws of Vietnam consistent with the nature of this relationship as well as in line with international practice? Has the investor selection in accordance with current regulations ensured publicity and transparency? Are the criteria for selecting investors really suitable to ensure that to-be-chosen investors have the best capabilities to implement the project?

- Have the regulations on project settlement for PPP investment projects fitted and reflected the true nature of this relationship?

- Investment activities in the form of PPP usually take place in

a long time, so disputes are likely to happen between participating parties or between service users and investors So when a dispute arises, which dispute resolution mechanism will be applied to resolve conflicts and disagreements?

2.3 Research hypotheses

Based on the research of Decree No 63/2018 / ND-CP, the Investment Law, the Law on Public Investment, the Bidding Law, the State Budget Law and the by-laws guiding the implementation of these laws, the thesis suggests two research hypotheses as follows:

- The first research hypothesis:

In order to improve the efficiency of investment activities in the form of PPP, it is necessary to have appropriate legal regulations, according to which: The promulgated legal provisions need to reflect the true nature of investment relations in the form of public-private partnerships; Provisions on the legal status of entities participating in this relationship, the rights, responsibilities and capabilities of the parties involved in the relationship; Investors in this relationship must meet certain requirements, so not all individuals and organizations can participate as investors; In order to find competent investors, open and transparent bidding must be conducted to

minimize the application of contractor designations; State participation with financial support is necessary for certain projects;

It is necessary to stipulate governmental guarantee measures to offset risks that investors may incur; Regulations are needed to ensure the benefits of the service users; The punishments imposed must be strict enough to prevent the violation from happening and, at the same time, severely punish the violating parties

- The second research hypothesis:

In order to improve the efficiency of investment activities in the form of PPP, the promulgated legal regulations aim to ensure the rights and benefits of public partners more to fulfill the State’s management objectives of investment activities; In this relationship, the state has the right to intervene by administrative orders to require investors to perform or not to perform a certain job that has not been aggreed upon in the contract; Investors only need to satisfy financial conditions to participate in PPP projects; The State does not need to offer financial support as well as investment guarantee measures to share risks with investors because if so, it is likely that the state will bear all risks; There is no need for legal provisions to ensure the interests of service users as this is a relationship established through a legal form that is a contract between the state and the investor

Part two CONTENTS OF THE THESIS

Chapter 1 THEORETICAL ISSUES OF INVESTMENT IN THE FORM OF PUBLIC PARTNERSHIP AND THE LAWS ON INVESTMENT IN THE FORM OF PUBLIC PARTNERSHIP 1.1 Theoretical issues about investment in the form of public- private partnership

1.1.1 The concept of investment in the form of public-private