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Impact on the restricted ruled of investment and service
The sectors of international investment and service between Australia and Thailand are impacted from TAFTA. Australia and Thailand established the commitment of each party in TAFTA.107 The Australian rules that restricts of service sector will be change for Thai service seller.108 Australia will provide the assessing of market for Thai investment that it will permits Thai business persons to hold share of company at 100 percent in Australia except in the businesses that
- ?acquisition of ?substantial interests? in existing Australian businesses with total assets of $50 million or more109 proposals to take over offshore companies whose Australian subsidiaries or assets are valued at $50 million or more or account for more than 50 percent of the target company?s global sales
- proposals to establish new businesses in Australia involving a total investment of more than $10 million
- investments by the Thai Government.?110
Australia also allows Thai invesment in the real estate. However, the invesments have not to involve with
- ?non-residential commercial real estate, where the property is subject to a heritage listing, valued at more than $5 million
- developed non-residential commercial real estate, where the property is not subject to a heritage listing, valued at $50 million or more
- accommodation facilities
- vacant urban real estate
- residential real estate?111
Thailand also provides the assesing of Thai market for Australain invesment that have ever been restricted. Thailand will open market for Australian invesments that the permition of thesese invesment are catagorised into 5 groups.
- ?Group that Australians can not hold the shares over 25 percent such as the infrastructural comunication service.
- Group that Australin can not hold the share over 40 percent such as the service of satelise communication.
- Group that Australian can not hold the share over 50 percent such as the managementconsulting services in communication, the saling of comunication implement, the comunication station renting service.
- Group that Australia can not hold the the share over 60 percent such as major restaurants or hotels, education institutions, and maritime cargo services.
- Group that Australian can hold the share at 100 percent such as distribution services in relation to those goods without limitation of Australian equity, managementconsulting services through a regional operating headquarters or associated company or branch, and construction services( that has registed the valued at least 1,000 millions Bath)?112
As seen in the first and second groups, These busines are seen as the importance in Thai market. The permittions in these two groups, from the agreement, is seemed to be significantly benefit for Australian invesment. Moreover, the very advatage point for Australian investers is in the last group that Thailand permits the holding of share in the business up to 100 percent because the invesment are normally stricted from Thai Alien Business Act113 that it is not permit the invesment of international persons to occupy share over 60 percent of coporation (the directors must be Thai nationals and a minimum of 40 percent of the shares must be held by Thai persons) At this point, the Australian invesment may be said that it has the most advatage in investing in Thailand that it can hold all of the share in company.
In the aspect of the sector of service, both country provide the acess of service market for each party under TAFTA. The commitment of both party from the TAFTA impact on the obligation that had been used before the TAFTA was come into force. From the commitments of the Agreement, Australian government presented that Australia will permit Thai persons to acess in its service sector ,for example
- "legal services: Australia will permit Thai service suppliers to provide advisory services in Thai law, third country law and international law, as well as international commercial arbitration services and other alternative dispute resolution services. Australia will also permit Thai lawyers to join local law firms in all states and territories except Western Australia and South Australia.
- landscape architectural services: Australia will permit Thai service suppliers to provide planning and design services for the aesthetic landscaping of parks, commercial and residential land.
- computer and computer-related services: Australia will permit Thai service suppliers to provide database services and other computer services.
- mining and related services: Australia will permit Thai service suppliers to provide consultancy services incidental to mining, and other services incidental to mining, including drilling services, repair and dismantling services and well-casing services. In addition, Australia will permit Thai service suppliers to provide mining related scientific and technical consulting services, as well as mining site preparation.
- communications services: Australia will not impose quotas on the number of satellite and mobile services and will permit unlimited Thai interest in Optus and Vodafone. Australia has not made any commitment on the ownership by Thai nationals of Telstra
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106. Ibid above n 91 38
108. The barriers of Thai service in Australian market is provide at the Appendix
109. In case that the value of Thai investment is over 50 millions, the investor must ask for the permission to establish that business from FIRB (Foreign Investment Review Board)
112. DNT, the open of commercial market under TAFTA (interpret from Thai languge www.Thaifta.com)
113. The Act has come into force on March 3, 2000. Under the Act, Alien means a natural person or juristic entity without Thai nationality, including a company with half or more than half if its shares held by aliens, or company with half or more than half of its shareholders being aliens.
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This article is published with the kind permission of Pornchai Wisuttisak, current PhD candidate, School of Business Law and Taxation, ASB, University of New South Wales, Master of Commercial Law, Macquarie University, BA, Political Science, Thammasat University, Thailand. This article originally appeared in the Thailand and Australia Free trade agreement (TAFTA): The advantage pace of foreign investment of both countries.
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