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

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

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

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

Pre-dispute * Lack of experiences in investment arbitration, Thailand signed the first BIT with Germany in 1961; the first arbitration case only arose in * 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.

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.

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

Substantive issues: Content of treaty 4 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’

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.

Conclusion: suggestions 1. Procedural concern: Establishment of the domestic mechanism - Dispute Prevention Policy - Intergovernmental Agency 2. 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

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