Joint Symposium: International Investment and Alternative Dispute Resolution

1. Joint Symposium: International Investment and Alternative Dispute Resolution 29 March 2010, Lexington, United States of America “Experiences of stakeholders in investment arbitration and dispute resolution - pitfalls and successes”: Thailand’s perspectives By Vilawan Mangklatanakul (Ministry of Foreign Affairs, Thailand)

2. The experiences* The first and only investment arbitration case for Thailand so far: the Walter Bau case * Thailand signed the first, of 42 BITs, with Germany in 1961; the first arbitration only arose in 2007

3. Two Aspects of our experiences:* Procedural: the process of dispute management * Substantive: the content of investment treaty

4. Procedural aspect: the process of dispute management> Pre-dispute> During-dispute> Post-dispute

5. Pre-dispute * Lack of experiences in investment arbitration, Thailand signed the first BIT with Germany in 1961; the first arbitration case only arose in 2007.* Lack of the Coordinating Agency when a dispute arises – relied upon the appointment of the Working Group only after the occurrence of dispute.* Lack of institutionalized dispute-filtering mechanism which could prevent a dispute escalating into formal investment arbitration.

6. During-dispute * Lack of understanding about BIT on the part of the relevant agencies* Lack of coordination for collective actions + Lack of central-information sharing system which cause inevitable delay.* Lack of experienced lawyers in the field in the country* Language barrier – the need for translation which causes delay, costs and inaccuracy.

7. Post-dispute* Lack of political willingness to accept an arbitral award in which state is a losing party* Accountable and answerable to the public and the media – which may sensitize the public opinion. * The impact of arbitral award on the investment climate and the country’s image.* Personal responsibility of officials in the case of loss

8. Substantive issues: Content of treaty4 key points:- the meaning of ‘investment dispute’- ‘specifically approved in writing’ – C.A.P. (certificate of Approval for Protection) mechanism in Thailand’s bilateral investment regime- ‘Fair and equitable treatment’- ‘Indirect Expropriation’

9. Vague terms in treaties  Over-expansive interpretation by tribunals [States (masters of treaties)  “Slaves”] Subject of treaties  their Objects  Absence of Home State when a dispute arises between its investor and Host State.

10. Conclusion: suggestions1. Procedural concern: Establishment of the domestic mechanism- Dispute Prevention Policy- Intergovernmental Agency2. Substantive concern:- Greater clarity/precision of the provisions: current trend- Enhance/create the institutionalised State-to-State cooperation mechanism – Joint Committee (JC) Reengagement of Home State * A forum for negotiation on settlement* Issue binding notes of interpretations

11. THANK YOU