ASEAN Bilateral Investment Agreements

By: Dr. Lawan Thanadsillapakul

Table 4
Comparison of some investment Agreements concluded between ASEAN
countries and some European countries, end the ASEAN Agreement for
the Promotion and Protection of Investments

Contracting
Scope of application Admission Expropriation Otter
Parties and Disputes
and and
date of Settiement main
Investor Investment Treatment Compensation points
agreement
Indonesia and On British Only Admission Expropriatoin Refer to ICSID On the British
Similar side British Investment Pre entry for a public side, there is
27 April, companies and which has subject to purpose territorial
1976 nationals been granted foreign Compensation extension
including admission in investment market value, to cover such
citizen of UK, accordance law and without territories,
colonies and with their regulations undue delay for whose
British subjects foreign. Treatment international
On Indonesia investment post-entry relations the
side Indonesian law, within MFN UK are
companies and the territory of treatment responsible
nationals contracting
parties only
Indonesia National or Only Admissmn Expropriation 1. Amicably Repatriation
And company of a investment Pre-entry for public settled within 6 subject to
Norway contracting granted subject to interest months and to the
party who admission in foreign non.-discrimi- If not extent
ffected or is accordance investrnent Nation A. Submit to permitted by its
26 Novemiber effecting with foreign law, on the contract laws and
1991 investment investment Indonesian Compensation ing party's regulations
replaced the in the laws of side and m market value, court having
one signed erritory of the Indonesia and accordance paid without jurisdiction
on 24 other in accordance with laws and delay, with B. refer to
November contracting with laws regulations on interest at ICSID
1969 party and regula Norwegian commercial
. tions of side rate
Norway Treatment
with the Post-entry
territory of MFN
Contracting
party oily

Contracting
Scope of application Admission ~proptieVOV Other
Parties and Dispute
and And main
dete of Settlement
Treatment Compensation points
Agreement Investor Investment

Indonesia Nationals Only approved Admission Expropriation -Diplomatic For the
And and legal investment in Pre-entry for public Channels purpose
Be1gium persons of accordance subject to Interest within a six of protecting
the either with the its legislation month period Indonesina
15 January Contracting legislation and but grant Compensation if fail then national
1970 party administration MFN just submit to economy,
of contracting treatment compensation, Arbitral some
party,. for admission actual price. Tribunal facilities
situated in Treatment of the affected may only
the territory Post - entry goods, MFN grant to
of the national treatment -Arbitration Indonesian
contracting treatment Decision concerns
parties only (similar binding the
investment), Parties
MFN
treatment for
the protection

Malaysia On the Investment Admisssion Eepropriation Refer to ICSID Exception
And British side: made in the Pre- entry for a public from MFN
Britain citizen of the territory of subject to urpose treatment
for the
UK and either laws enforced Compensation perference
21 May 1981 Colonies, contracting in either prompt, or privilege
and any party only, and contracting adequate extend to
British must be an party and custom
subject and approved Treatment effective union or
companies project under Post-entry free trade
constituted Malaysian Most area by
under the law laws,on the favored- either party
in force in Binritish side, nation
the lJK& investment treatment
northern made in accorded
Ireland accordance fair and
On the with equitable
Malaysian its legislation treatment
side ,
Malaysian
nationals
and companies

ASEAN Bilateral Investment Agreements

Contracting
Scope of pplication Admission Expropriation Other
Parties and Disputes
and end main
date of settlement
Investor Investment Treatment Compensation points
Agreement
Malaysia and Nationals Investment Admission Expropriation 1. Settle by Companies
Germany and admitted in Pre-entry for a public the both shall not
22 December companies accordance subject to puipose governments include a
1960 lawfully with their the approval Compesation 2. Arbitration branch(es)
constituted laws and process in prompt,. and the which has
in accordance regulations Malaysia adequate and arbitral its seat or
with its with in the and in effective decision incorporated
legislation territory of accordance compensation is binding in the territory
of the that contracting with its and freely or by or
party party only,. legislation transferable under the
and on the in Germany laws of
Malaysian Treatment a thrid party
side, it must Pre-entry
be an MFN or
approved National
project in treatment
Malaysia
Malaysia Nationals and Investment Admission Expropriation A amicable Repatriation
Rural companies made in the Pre-entry for a public settlement of return of
Belgium constituted in territory of subject to purpose if not investrnent
Luxembourg accordance either the approval and non- B. submit and others
with its contracting process in discrimination to ICSID is freely
22 November legislation party in Malaysia transferred
979 of that accordance and in Compensation but
parties with their accordance prompt, subject to its
laws and with its adequate, and laws and
regulations, legislation effective, freely regulations
and on in Belgium- transferable
Malaysian Luxembourg
side. it must Treatment
be and Post -entry
approved MFN
Project in treatment
Malaysia

Contracting Scope of application Admission Expropriation Other
Parties and Disputes
and and main
date of settlement
Investor Investment Treatment Compensation points
Agreement
Malaysia Nationals and Investment Admission FaproPrbation Refer to -Freely
And companies made in the Pre-entry for public ICSID repatriation
Norway lawfully territory of subject to interest, of return of
constituted, either its right to under due investment
6 November having its contraoting exercise process, but subject
1984 seat or party in powers non- to its laws
having accordance conferred discrimination and
predominating with its by its laws, regulations
interest of legislation and screening Compensation
that party On Malaysian process prompt, -MFN
side, it Treatment adequate treatment
must be an Post-entry and effective, will not
approved MFN which is freely extend to
project treatment transferable existing or
future REIO
Malaysia and Nationals and Investment Admission Expropriation Refer to -Freely
Finland companies made in Pro-entry for a public ICSID repatriation
15 April 1985 lawfullv accordance subject to purpose, non- of return of
constituted with its approval discrimination investment
in territory laws and and in and under due but subject to
of that party regulations accordance process of law its laws and
or having in the with its regulations
predominating territory of legislation Compensation
interest of either Treatment prompt, -MFN
that party contracting Post-entry adequate treatment
party, and MFN and effective, will not
on Malaysian treatment amount to extend to
side it must market value existing or
be an and freely future REIO
approved transferable
Project.

ASEAN Bilateral Investment Agreements

Contracting
Scope of application Admission Expropriation Other
Parties and Disputes
and and main
date of settlement
Investor Investment Treatment Compensation points
agreement
Malaysia Nationals and On Malaysian Admission Expropriation 1. local Including
and companies side, approved Pre-entry for a public administrative shipping
Netherland lawfully project in accordance purpose, and judicial services
constituted in On the with their under due remedies
accordance Netherlands legislation, process of 2. refer to
15 June 1971 with is side, and approval law and non- ICSID
legislation investment process discrimination
of that party. On under the
the Netherlands relevant Treatment Compensation
side, including laws and Post-entry prompt,
companies regulation national adequate
controlled treatment and
directly or effective
indirectly by
its national
or legal person
Philippines Nationals and Investment Admission Expropriation Refer to -Freely
and companies brought into, Pre-entry for public ICSID transfer of
Netherlands of either party. derived from, fair and use, in the investmert
Companies or directly equitable public interest but subject
27 February 1awfully connected with treatment or national to the right
1985 constituted investment defence to impose
in the territory brought into Treatment equitably
of that the territory Post-entry Compensation and in good
contracting of either MFN just faith such
party, and contracting compensation measures to
actually doing party in at the market safeguard the
business in conformity value, without integrity and
the territory with their undue delay independence
of that party lews and and freely of its
wherein a regulations convertible currency
place of currency Exception
effective of MFN
management contracting
is situated, party will
and directly not extend
or indirectly privilege
controlled by and preference to
the national custom
company union, free
of that party trade area,
which they
are a member

y7M7sn.2711,7(7 ffTvriusyyu7ss7x

Contracting
Scope of application Admission Expropriation Otber
Perties and Disputes
and and main
date of settlement
Investor Investment Treatment Compensatian points
agreement
Philippines Nationals and Investment Admission Expropriation A. settle by -Exception
and companies of made in the Pre-entry for the public the two MFN not
Germany either party. territory accords to benefit contracting included
Interpretation of either any similar Compensation parties the privilege
3 March of company contracting investment the equivalent B. arbitration grant to the
1964 base on the party including in its territory, of the US nationals
concept of the ones made in acoordance investment and
the seat prior to its with laws and affected, companies
(siege social) enter into regulations, need without
force of the certificate delay
agreement of admission
and with fair
and equitable
Treatment
Treatment
Post-entry
MFN treatment
Singapore British Investment Admission Appropriation 1. settled On British
and nationals specifically Pre-entry for public through side,
Britain include approved with fair and purpose diplomatic territorial
British, in writing equitable channel extension
22 July 1975 citizen of by the treatment Compensation 2. arbitration covered any
colonies, contracting but subject prompt, territory for
British party to its right to adequate whose
subject, in whose exercise and effective international
and British temtory the powers compensation relations
protected investment conferred by amount to they are
person, and have been it laws to admit the market responsiible
companies made or will investment, value, made but with the
constituted be made Treatrnent without delay consent of the
under the Post-entry and freely goverrment of
British law. MFN and transferable Singapore
Singaporians national
and treatment
companies where
constituted applicable
the law
enforced
in Singapore

ASEAN Bilatersl Investment Agreements

Contracting
Scope of application Admission Expropriation Other
Parties and Disputes
and and main
date of
Treatment Compensation settlement points
agreement Investor Investment
Singapore Nationals and Approved Admission Appropriation Refer to ICSID Exception
and France companies investment Pre-entry for the public MFN
lawfully in writing fair and purpose, non- treatment,
8 September constituted in the equitable discrimination privilege and
1975 under the territory of treatment Campensation preferential
law in force either Treatment commercial treatment
in that party. contracting Post- entry value of the accorded by
party MFN and assets, virtue of
Company, on national without regional
French side, treatment undue delay, arrangement
must has head and free by either
office in France transferability contracting
party will not
extend to
the other party
Singapore Nationals and Only Admission Appropriation 1, anvcabhe -Admission
and companies Investment Pre-entry for the public settled by shall not be
Germany lawfully made within in accordance benefit to both oonditional
constituted in the territory of with its governments for availing
3 October acccordance either party. legislation Campensation 2. arbitration incentives
1973 with its On Singapore and just and for the
legislation of side, investment administrative equitable with purpose of
either must be practice within fair market investment
party approved the frame value, without promotion.
in writing work of the delay, freely
Definition by the general transferable -Companies
of company government economic shall not in
in respect of of Singapore policy clude a
Germany is and on Treatment branch(es)
having seat in German side, Post-entry which has its
the territory of investment national seat or consti
Germany and made in treatrnent or at tuted in
lawfully aooordance least MFN a third state.
Incorporated. with its treatment
legislation where
applicable
Contracting
Scope of application Admission Expropriation Other
Parties and Disputes
and and main
date of settlement
Investor Investment Treatment Compensation points
agreement
Singapore Nationals and On Singapore Admission Appropriation arbritation including
and legal persons side, only the Pre-entry in the public international
Netherland controlled approved fair and interest and merchant
directly or investrment in equitable under due shipping
16 May 1972 indirectly by writing made treatment process of law services
nationals of within the within the non-
that contracting territory framework discrimination
party and of Singapore. of their Compensation
constituted in On the respective just
accordance Netherlands legislation Compensatisn
with the side, all Treatment without undue
laws of the investment Post-entry delay,
other made by national transferable
contracting nationals treatment in the currency
party. of Singapore and MFN of the country
in the treatment of the nationals
territory of whichever affected
Netherlands is more
favourable
Sigapore Nationals and Investment Admission Appropriation 1. Amicably MFN
and legal persons approved in Pre-entry for public settled by the treatment
Belgium- legally writing by the accorded fair purpose, both parties not extend
Luxembourg constituted contracting and equitable non- 2. refer to to the
under the party in treatment in discrimination ICSID regional
17 November laws in force whose the territory arrangements
1978 in either territory the of either Compensation for custom
contracting investment contracting prompt, trade tariff or
party have been party subject to adequate and monetary
made or will its right to effective matters
be made exercise payment of which each
subject to the powers compensation, contracting
laws and to the conferred by its represent party is or
ondition upon laws or its market value will be a
which such administrative and free member
approval shall practice transferability
be granted within the
framework
ASBAN Bi7eteral Investment Agreemcnls
Contracting
Scope of application Admission Expropriation Other
Parties and Disputes
And and main
date of settlement
Investor Invesment Treatment Compensation points
agreement
of its general
economic
policy
Treatment
Post-entry
MFN
treatment
Thailand Nationals and only Admission Appropriation 1. settled Repatriation or
and juristic approved Pre-entry for the public by the both transfer
Germany persons of investment admit the benefit governments of benefit
either made in the investment in 2. arbitration
13 December contracting par- territory of accordane Compensation Transfeps
1961 ties the either with the just from
term juristic contracting legislation compensation, Thailand are
persons or party in and subject freely subject to the
companies accordance to approval transferable, regulation of
mean entity with their Process without the Bank of
having its legislation. undue delay Thailand
seat in the Contracting Treatment regarding
territory of party is free Post-entry stability and
either party to decide in national balance of
and lawfully accordance treatment payment,
existing to its policies and MFN large amount of
consistent and treatment transfers shall
with legal published where be made
provisions plans applicable in Instalments
Thailand and Nationals subject to admission Appropriation arbitration territorial
Netherlands and legal their Pre-entry in for the public extension,
persons legislation, accordance benefit and on the
6 June 1972 constituted companies, with its laws under due Netherlands
in accordance associations, and process of law, side, the
with the laws other requirements non- agreement
of either organisations to admit discrimination shall apply
contracting of any kind or investment Compensation to the
party in the subsidiary from just territory
Contracting
Scope of application Admission Expropriation Other
Parties and Disputes
And and main
date of settlement
Investor Invesment Treatment Compensation points
agreement
bodies the other compensation of the
connected Contracting in accordance Kingdom
with Party with in Europe, to
economic international Surinam and
life and Treatment law, without to the
all other Post-entry undue delay Netherlands
nationals national in currency of Antilles
engaged in treatment the affected
economic and MFN nationals.
activites treatment in case
in its where of transfer
territory applicable of large
within the amount, it
limit of laws can be
or legistation in instalments
The ASEAN Agreement for the Promotion and Protection of Investments
Scope of application Admission Expropriation Other
Contracting Disputes
and and main
Parties and settlement
Investor Investment Treatment Compensation points

Brunei Nationals and Only Admission Appropriation Dispute Justification of
Indonesia legal persons investment Pre-entry for public use among company,
Malaysia incorporated or brought into, fair and or public contracting incorporated
Philippines constituted derived from or equitable purpose or parties under the
Singapore under the laws directly treatment public interest, settle by laws in force in
Thailand in force in the connected with subject to under due 1. amicable the territory of
Vietnam territory of any investments laws and process of settlement contracting
contracting brought regulations law, on a between party wherein
15 December party wherein into the of host Non- the parties the place of
1987 the place of territory countries discrimination 2. submitted effective
Amended on effective of any Treatment basis to AEM management is
12 September management contracting Post-entry compensation Disputes situated
1996 is situated party MFN but any adequate between
two or more compensation contracting
Scope of application Admission Expropriation Other
Contracting Disputes
and and main
Parties and settlement
Investor Investment Treatment Compensation points

nationals of the amount to parties and
or companies contracting market value, investors
of any other parties may ne- freely settled by
contracting gotiate to transferable 1. settled
party and accord in realy- amicably
specifically national usable between
approved treatment currencies, the parties to
investment in without the
writing and unreasonable dispute
registered delay 2. arbitration
in the territory of
host
Country

Source: Compiled and compared by the author from ASEAN countries' bilateral investment agreements and the ASEAN Agreement for the Promotion and Protection of Investments