Expert in Investment Disputes

Technical Expert - Terms of Reference

Project Name: Management of Investment Disputes

Post Title:  Expert in Investment Disputes

Deadline to Apply: March 9, 2020

Background

Funded by Global Affairs Canada, the Expert Deployment Mechanism for Trade and Development (EDM) provides technical assistance to Official Development Assistance (ODA)-eligible countries to maximize the development impacts of trade and investment. Over seven years (2018-2025), EDM will invest CAD $16.5 million to support Canada’s developing country trading partners to negotiate, implement and benefit from and adapt to trade and investment agreements with Canada.

EDM is a demand-driven project that will benefit potential partners – including governments, local private sector groups and local civil society organizations – through capacity building and technical advisory support on policy reform issues that have a high potential to reduce poverty and gender inequalities, and support progress in trade and investment agreement negotiations.

Vietnam has been identified by Global Affairs Canada as a priority country for technical assistance, in the context of the implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Despite rapid economic growth since the introduction of the “doi moi” (renovation) reform policy in 1986, Vietnam faces daunting challenges:

• growth in total factor productivity has slowed;
• the demographic dividend is being eroded by low-wage competitors;
• trade costs remain comparatively high;
• its exports remain labour-intensive and low value-added;
• the benefits of economic growth are unevenly spread among its 58 provinces – 15% of the population, living in remote or rural areas, carry the burden of 50% of national poverty;
• women are disproportionately represented in subsistence farming, in low-skilled, precarious employment and in the informal economy, and;
• women remain underrepresented in senior management and the political class.

Implmentation of the CPTPP also represents a significant challenge to Vietnam – a commitment to implement a comprehensive set of state-of-the-art trade disciplines that exceed the obligations of WTO agreements. Notwithstanding the suspension of certain measures after the US withdrawal (largely measures affecting intellectual property rights), the CPTPP calls upon Vietnam to further open its market, adopt stronger governance and regulatory practices, expand labour rights and meet higher environmental standards, provide greater protection to investments, and foster enhanced inclusiveness in trade. Implementing the many new obligations imposed by CPTPP membership will require support from CPTPP and development partners.

An EDM mission to Vietnam, conducted in November 2018, identified many technical assistance needs, including in trade policy capacity-building. Subsequent discussions with the Multilateral Trade Policy Department of the Vietnamese Ministry of Industry and Trade (the coordinating agency for EDM assistance projects in Vietnam) and the project leads for individual applicant organizations, established priority assistance projects for 2019-20. Among the priorities expressed by Vietnam was support to implement the investment obligations of the CPTPP, to raise public awareness of enforcement obligations, and strengthen Vietnam’s capacity to manage investment disputes.

This assistance is consistent with the approved EDM Country Needs Assessment Plan for Vietnam, Mandate 1, Trade Policy Capacity Building, and the EDM Performance Measurement Framework, Immediate Outcome 1210, enhancing the ability of partner country governments to strengthen, implement and measure legislation, regulations, policies and/or standards that support inclusive trade and investment agreements with Canada. 

This assistance will directly benefit 10 Vietnamese officials who will participate in the study tour to Canada and officials, the judiciary, and members of the Vietnamese Bar who will participate in investment disputes. The indirect benefit will be governments and industries in Vietnam.

Description of Assignment

Technical assistance has been requested by the Department of Legislation and the Foreign Investment Agency, Ministry of Planning and Investment, to establish an effective investment dispute management system.  

This consult will:

• Prepare a report on the Canadian and other international investment dispute management models.
• Conduct a one-week mission to Hanoi to present the report and provide advice to Vietnamese officials on the establishment of an effective dispute management system.
• Design and conduct a study tour to Canada for 10 Vietnamese officials responsible for the management of investment disputes. The study tour will provide an opportunity for Vietnamese officials to meet Canadian counterparts, members of the Canadian Bar and representatives of Business Associations with experience in investment disputes.
• Throughout the delivery of TA, the consultant will seek to identify opportunities to promote social inclusion, in both the short-term conduct of the project and longer-term economic policy development.

Technical Expert Profile/Expertise Required

• Applicants for this assignment must have extensive experience in the management of investment disputes in the public sector.
• A comprehensive knowledge and understanding of international investment protection agreements.
• A thorough knowledge and understanding of investment provision of the CPTPP.
• Experience in providing technical assistance to developing countries.
• The EDM includes a core focus on gender and social inclusion as well as on environmental issues associated with trade activities. The approach to TA related to both topics is included in guidance documents that are available to both TA applicants and Technical Experts. Integrating such analysis will form a core part of the mandate of the TA provider therefore any prior experience in the provision of TA on gender equality and social inclusion and environment will be viewed as a strong asset.

Timelines

April to September 2020

Reporting and Deliverables

Deliverables:

• Revised Activity Workplan – this plan will include a revised overall implementation plan, a performance measurement approach, including specific performance measures to evaluate the effectiveness of the project, and activity timelines and proposed budgets.
• Proposed structure, content, and participation in the study tour.
• Study tour report.
• Report on the Canadian and other international investment dispute management models.
• Mission plan, including a mission schedule, list of meetings and planned activities.
• Mission report and list of meetings.
• Final activity report as per EDM report guidelines as outlined below:

Reporting:

On conclusion of the activities, the consultant will prepare a final report as per EDM report guidelines, including:

1. General context and broad objective(s) of the activity
2. A summary of the approach and specific activities
3. Expected and unanticipated challenges in the delivery of the activities
4. Outlines results, including the immediate outcomes and the anticipated longer-term benefits
5. Sustainability of results
6. Contribution to gender equality, social inclusion and sustainable development
7. Recommended performance management framework and specific performance measures
8. Recommended next steps in the implementation of the CPTPP in Vietnam, including future EDM deployments. 
9. Lessons learned for future EDM interventions.
10. List of trade promotion organizations in CPTPP countries.

To apply:

1. Describe your specific approach to implementing this TA.
2. Describe your project management and monitoring strategy for the implementation of the activities.
3. Indicate all personnel who are being proposed to implement this project and what their roles and responsibilities will be. Please include all their CVs.
4. Provide estimated level of effort and consulting rates for those implementing the project.

Please apply online or send a cover letter and application outlining details above to: Vicki Campbell, EDM Program Manager, at vicki.campbell@cowater.com by March 9,2020. Please note that while we thank all applicants, we are only contact short-listed candidates.