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Articles
ASEAN Bilateral Investment Agreements
By: Dr. Lawan Thanadsillapakul
The comparison of the ASEAN BITs (18)
Table 4 shows that all bilateral investment agreements concluded between ASEAN member countries and the Western capital-exporting countries conform to a general pattern, although the terms used in the agreements were divergent. All ASEAN countries share the same common principle that admission of foreign investment is based on the domestic laws and regulations of the host countries, so that all foreign investments may be subject to a government screening process. This can be seen from the terms and conditions regarding this issue, to all ASEAN BITs Thus, the BIT between Philippines and Germany stated in the attached Protocol that:"Either Contracting Party reserves the right to requie as a pre-requiste to the admaisions of an investment within is territory a "certificate of admission" which is shall issue to investments it considers admissible pursuant to Art.1"
Art, 2 (I) of the BIT between Indonesia and Britain also provided that:
"This Agreement shal only apply to investments by nationals or eompanies of the United Kingdom in the territory of the Republic of Indonesia which have been granted
adminsion in accordance with the Foreign Capital Investment law No. 1 of 1976 or any law amending or replacing it"Art. 1 (b) of BIT between Malaysia and Britain simllarly stated that:
"In respect of investments in the territory of Malaysia, to all investments made in projects classified by the appropriate Ministry of Malaysia in accordance with its legislation and administrative practice as an "approved project"
Art. 2 of the BIT between Philippines and Netherlands provided that:
'This Agreement shall apply only to investment brought into, derived from, or directly connected with investments brought into the territory of one Contracting Party by nationals of the other Contracting Party, in conformity with the former Partv's laws end regulation including due registation with the appropriate agencies of the receiving Contracting Party, if so required its laws"
Protocol (1) to Art. 1 of BIT between Thailand and Germany provided that:
"in respect of investments in the terriitory of the Kingdom of Thailand the term "investment"'
wherever it is used in this Treaty, shall refer to all investments made in projects classified in
the certificate of admission by the appropriate authority of the Kingdom of Thailand in
accordance with its legislation and administrative practice as an "approved project".The Singapore BITs clearly stated that the scope of agreement or the protection of foreign investors would cover only investments approved in writing. For example the BIT between Singapore and Germany (19) provided that:
"in respect of investment in the territory, of the Republic of Singapore, to all investments approved in writmg by the Government of the Republic of Singapore irrespecnive of
whether these investments were made before or after the coming into force of the present Treaty"This can be seen also in BIT between Singapore and France (20), which provided that:
The provision of this Agreement shall only extend to investments whether made before or after the comma into force of this Ameement which ue specbically approved
in writing by the contracting party in whose territory the investment have been made or will be made.Also the agreement between Singapore and Germany further specifies that the admission of investment must be in accordance with the economic policy of the host countries(21). BITs made by Indonesia with Britain, Norway and Belgium 22 state that investment must be subject to foreign investment laws and regulations(see Table 4) which are distinct from the general national law provided for the constitu-tion of domestic companies.
Moreover, all ASEAN countries' BITs cover only investment made directly in the territory of the contracting party (see Table 4). Specifically, the BIT between Malaysia and Germany clearly defined the term "companies" as follows:
"The term "Companies referred to in paragraph (4) of Art. 1 shall not include a branch or branches of any judical person, company or association which has its seat or is incorporatad or constituted in the territory or by or under the laws of a child party'"
Generally, the objective of admission criteria for foreign investment of ASEAN countries is to screen out the entry of harmful foreign investments and also to seek to ensure that foreign investment which enters the ASEAN countries will continue to benefit the host countries, even after the commencement of the operation. The requirements to comply with internal laws and regulations of the host countries would cover performance requirements provided in such laws, which are usually applied in conjunction with investment incentives packages. These usually require the export of an agreed-upon percentage of the production, compliance with planning and environmental controls, conditions for hiring local labour and also requirements related to repatriation of profits of the foreign investment.
Regarding post-entry treatment of foreign investors, even though all BITs guarantee the free transfer or repatriation of profit derived from the investment, they all subject this to the rules and regulations of the host countries, which allow for controls due to the balance of payment conditions or financial situation. For instance, Art. IV of the BIT between Thailand and Netherlands provided that:
(1) Each Contracting Party us prepared, within the limits of its legislation, to facilitate the delivery of capital goods to,. or the carrying out of public works for…. , and (2) In pursuance of transactions entered into under paragraph (1) above, each Contracting Party shall authrorize, within the limits of its legislation the transfer, when due, of money owing to nationals of the other Contracting Party'
Also the BIT between Indonesia and Norway provided in Art. VII that:
"Each Contracting Party guarantees, subject to and to the extent permitted by its laws and regulations, to the investors of the other Contracting Party, in respect of their investment, without delay the transfer of:…..".
The existence of these requirements, and the administrative mechanisms which supervise foreign investment to ensure that it complies with the conditions imposed, guarantee that foreign investment functions within a tightly regulated sphere of the host ASEAN countries' laws.
Even though all ASEAN BITs provided Most-Favoured-Nation treatment (MFN) and some BITs even grant National Treatment, the protection is subject to or under the limitation of the domestic laws of the host countries. For instance, Art. 2 (3) of BIT between Indonesia and Belgium provided NT/MFN treatment to investors from the contracting parties but this is subject to the stipulations contained in the Protocol attached to the present Agreement (24).. And Art. 2 of the Protocol attached to this BIT provided a reservation for Indonesia that:
"For the purpose of peotecting the Indonesian national economy, the Government of the Republic of Indonesia may grant some failities to Indonesian concerns which do
not fully apply to Belgian concerns"Therefore, Indonesia needs not extend some rights to investors from Belgium on the grounds of protecting the Indonesian national economy Even. though the Protocol further stated that MFN treatment still applies, nevertheless national treatment granted in the BIT is affected by this reservation.
Some agreements provided both MFN and national treatment, but the two treatments were applied to different cases and conditions or different fields of protection. The BIT between Thailand and Netherlands provided both National and MFN treatment for protection of foreign investment but each applies to different fields of protection, in Art. V, in respect of the payment of taxes, fees or charges and to the enjoyment of fiscal deduction, MFN treatment is required. But in Art. VI the protection of industrial property, national treatment is expected while Art. VII provides for MFN treatment for the protection of investment, goods, rights and interest of the investors of the other Contracting Party.
Foreign investment that does not comply with the conditions on which it was permitted entry can be subjected to fines, diminution of the rights that had been granted, and even to termination. Therefore, the admission of foreign investment on the basis of fair and equitable treatment, and even the treatment after the entry of such investment on the MFN basis or national treatment, is fundamentally based on laws and regulations as well as policies of the host ASEAN countries.
However, the ASEAN BITs do provide protection against nationalisation and expropriation, and also compensation in case expropriation takes place. Regarding expropriation and compensation, ASEAN countries accept the minimum standard rule that nationalisation or expropriation will take place only for public purposes and with prompt, adequate and effective compensation. Nevertheless, some agreements have divergent provisions, for instance, Thailand can apply the rules and regulations of the Bank of Thailand and also large transfers can be required to be made on an instalment basis(25).Some agreements apply the rule of market value to the affected investment(26)..These variations are closely related to the internal policies, investment laws and investment regimes of each ASEAN country.
The dispute settlement measures provided in the ASEAN's BITs mainly refer to ICSID, but some BITs provide for preliminary measures for seeking amicable settlement between the parties, or by seeking remedies from local tribunals before bringing the case before an arbitration tribunal (see Table 4).
This comparison of the ASEAN BITs clearly shows that they do not over ride or affect ASEAN countries' national laws, and especially the entry of FDI may be subject to screening procedures and other requirements. Post-entry treatment of FDI is also still under control of ASEAN host countries. Next I compare the ASEAN Investment Agreement, which is entered into among the ASEAN countries themselves, with the ASEAN BITs to see whether or not it is different from the ASEAN BITs, and its implications.
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(18)
The discussion in this section is the original analysis of the author based on the comparison of us ASEAN BITs in Table 4, which is compiled by the author.(19)
Art 1 (ii) of BIT between Singapore end Germany..(20)
Art.9 of BIT between Singapore and France(21)
Art 2 (i) of BIT between Singapore and Germany provided that "Each Contracting Party shall endeavour to admit investment by nationals or companies of the other Contracting Party in accordance with its legislation and administrative practice within the framework of the general economic policy and to promote such investment as far as possible".
(22)
See Art 2 (1) of BIT between Indonesia and the Great Britain, Art II of BIT between Indonesia and Norway, and Art 2 of BIT between Indonesia and Belgium.
(23)
Paragraph (1) of the Protocol attached to the BIT between Malaysia and Germany, dated 22nd December 1960.(24)
Art 2 (3) of BIT between Indonesia and Belgium provided that "the investment of nationals or legal persons of either Contracting Party in the territory of the other Contracting Party shall be accorded by such other Party, a treatment no less favourable than that which it accords in its territory to any similar investment owned by it own nationals or legal persons or by nationals or legal persons of third States with due regard to the sipulations contained at the Protocol attached to fhe present Agreement and the Protocol".(25)
Protocol (4) (b) of BIT between Thailand and Germany reads that "in the case of transfers from Thailand under Art, 4 the Bank of Thailand may, when considerations regarding exchange market stability and balance of payments necessitate the introduction of measures to assure the availability of foreign exchange specify that large amounts shall be transferred in instalments of ……"
(26)
For instance, BIT between Indonesia and Britain, Art 5 read that "….Such compensation shall amount to the markat value of the investment expropriated" and BIT between Indonesia and Norway also provided in Art VI that "Such compensation shell amount to the market value of the investment….".