2. Any and all investments made pursuant to the BIT before the entry into force of this Agreement will be governed by the said BIT regarding any matter arising while the BIT was in force. An investor may only submit an arbitration claim pursuant to the BIT regarding any matter arising while the BIT was in force, pursuant to the rules and procedures established in it, and provided that no more than three years have elapsed since the date of entry into force of this Agreement.
Article 9.22. Corporate Social Responsibility
Each Party should encourage investors operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies, those internationally recognised standards, guidelines, and principles of corporate social responsibility that have been endorsed or are supported by that Party.
Article 9.23. Committee on Investment
1. The Parties hereby establish a Committee on Investment with a view to accomplishing the objectives of this Chapter. The functions of the Committee shall be to:
(a) discuss and review the implementation and operation of this Chapter;
(b) exchange information on, and discuss investment-related matters within, the scope of this Chapter which relate to the improvement of investment environment;
(c) consider any issues raised by either Party concerning investment agreements; and
(d) discuss any other investment-related matters concerning this Chapter. 2. The Committee shall meet as agreed by the Parties.
3. Any dispute arising out of the interpretation, implementation, or application of this Chapter, shall be referred to the Committee without prejudice to Article 9.24 (Settlement of Investment Disputes between a Party and an Investor of the Other Party), and the Committee shall seek to resolve disputes that may arise in areas covered by this Chapter.
Article 9.24. Settlement of Investment Disputes between a Party and an Investor of the other Party
Scope and Definitions
1. This Article shall apply to disputes between a Party and an investor of the other Party concerning an alleged breach of an obligation of the former under Article 9.3 (National Treatment), Article 9.4 (Most-Favoured-Nations Treatment), Article 9.5 (Treatment of Investment), Article 9.6 (Compensation for Losses), Article 9.7 (Performance Requirements), Article 9.8 (Senior Management and Board of Directors), Article 9.11 (Expropriation and Compensation), Article 9.12 (Transfers), and Article 9.13 (Subrogation) which causes loss or damage to the investor in relation to its covered investment or the covered investment that has been made by that investor with respect to the management, conduct, operation, sale or other disposition of such covered investment.
2. This Article shall not apply to:
(a) pre-investment activities and expenditures relating to admission, establishment, acquisition, or expansion;
(b) disputes arising out of events which occurred prior to the entry into force of this Agreement;
(c) disputes where the disputing investor holds the nationality or citizenship of the disputing Party; and
(d) disputes arising out of an investment which has not been made in good faith and has not been made in accordance with domestic laws and regulations.
3. A claim with respect to public debt shall be subject to this Article and Annex 9C (Public Debt).
4. For the purposes of this Article:
(a) Appointing Authority means:
(i) in the case of arbitration under subparagraph 8(a), the Secretary- General of the Permanent Court of Arbitration; or
(ii) any person as agreed between the disputing parties;
(b) disputing Party means a Party against which a claim is made under this Article;
(c) disputing party means a disputing investor or a disputing Party;
(d) disputing parties means a disputing investor and a disputing Party;
(e) disputing investor means an investor of a Party that makes a claim against the other Party on its own behalf under this Article and, where relevant, includes an investor of a Party that makes a claim on behalf of a juridical person of the disputing Party that the investor owns or controls according to business registration record in the host country and the claim shall only be limited to the proportion of the equity owned;
(f) ICSID means the International Centre for Settlement of Investment Disputes;
(g) ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
(h) ICSID Convention means the Convention on the Settlement of Investment Disputes between States and National of other States, done at Washington on 18 March 1965;
(i) New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
(Gj) non-disputing Party means the Party of the disputing investor; and
(k) UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law, approved by the United Nations General Assembly on 15 December 1976.
Consultations
5. In the event of an investment dispute referred to in paragraph 1, the disputing parties shall, as far as possible, resolve the dispute through consultations with a view towards reaching an amicable settlement. Such consultations may include the use of non-binding, third party procedures, and shall be initiated by a written request for consultations delivered by the disputing investor to the disputing Party.
6. With the objective of resolving an investment dispute through consultations, a disputing investor shall provide the disputing Party, prior to the commencement of consultations, with information regarding the legal and factual basis for the investment dispute.
Claim by an Investor of a Party
7. If an investment dispute has not been resolved within 180 days after the date of receipt by a disputing Party of a request for consultations, the disputing investor may submit to conciliation or arbitration a claim:
(a) that the disputing Party has breached an obligation arising under Article 9.3 (National Treatment), Article 9.4 (Most-Favoured-Nations treatment), Article 9.5 (Treatment of Investment), Article 9.6 (Compensation for Losses), Article 9.7 (Performance Requirements), Article 9.8 (Senior Management and Board of Directors), Article 9.11 (Expropriation and Compensation), Article 9.12 (Transfers), or Article 9.13 (Subrogation) relating to the management, conduct, operation, sale or other disposition of a covered investment; and.
(b) that the covered investment has incurred loss or damage by reason of, or arising out of, that breach.
Submission of a Claim
8. A disputing investor may submit a claim referred to in paragraph 7 at the choice of the disputing investor:
(a) under the UNCITRAL Arbitration Rules; or
(b) if the disputing parties agree, to any other arbitration institution or under any other arbitration rules,
provided that resort to one of the fora under subparagraphs (a) and (b) shall exclude resort to any other forum.
9. Acclaim shall be deemed submitted to arbitration under this Section when the disputing investor's notice of or request for arbitration made in accordance with paragraph 12 is received under the applicable arbitration rules.
10. The arbitration rules applicable under subparagraphs 8(a) and (b), as in effect on the date on which the claim or claims were submitted to arbitration under this Section shall govern the arbitration, except to the extent modified by this Article.
11. In relation to a specific investment dispute or class of disputes, the applicable arbitration rules may be waived, varied or modified by written agreement between the disputing parties. Such rules shall be binding on the relevant tribunal or tribunals established pursuant to this Section, and on individual arbitrators serving on such tribunals.
12, The disputing investor shall provide with the notice of arbitration: (a) the name of the arbitrator that the disputing investor appoints; or
(b) the disputing investor's written consent for the Appointing Authority to appoint that arbitrator.
Conditions and Limitations on Submission of a Claim
13. The submission of a dispute as provided for in paragraph 7 to conciliation or arbitration under subparagraphs 8(a) and (b) in accordance with this Article, shall be conditional upon:
(a) the submission of the investment dispute to such conciliation or arbitration taking place within three years after the date on which the disputing investor became aware, or should reasonably have become aware, of a breach of an obligation referred to in subparagraph 7(a) causing loss or damage to the investor in relation to its covered investment or the covered investment that has been made by that investor;
(b) the disputing investor providing written notice, which shall be submitted at least 90 days before the claim is submitted, to the disputing Party of its intent to submit the investment dispute to such conciliation or arbitration, and which briefly summarises the alleged breach of the disputing Party, including the provisions of this Chapter alleged to have been breached, and the loss or damage allegedly caused to the disputing investor or a covered investment;
(c) the notice of arbitration being accompanied by the disputing investorâs written waiver of its right to initiate or continue any proceedings before the courts or administrative tribunals of either Party, other dispute settlement procedures, or any proceeding with respect to any measure alleged to constitute a breach referred to in paragraph 7.
14. Notwithstanding subparagraph 13(c), no Party shall prevent the disputing investor from initiating or continuing an action that seeks interim measures of protection for the sole purpose of preserving its rights and interests and that does not involve the payment of damages or resolution of the substance of the matter in dispute, before the courts or administrative tribunals of the disputing Party.
15. No Party shall give diplomatic protection, or bring an international claim, in respect of a dispute which has been submitted to conciliation or arbitration under this Section, unless the other Party has failed to abide by and comply with the award rendered in such a dispute. Diplomatic protection, for the purposes of this paragraph, shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
16. A disputing Party shall not assert, as a defence, counter-claim, right of set off or otherwise, that the disputing investor or the covered investment has received or will receive, pursuant to an insurance or guarantee contract, indemnification or other compensation for all or part of any alleged loss.
Selection of Arbitrators
17. Unless the disputing parties otherwise agree, the tribunal shall comprise of three arbitrators:
(a) one arbitrator appointed by each of the disputing parties; and
(b) the third arbitrator, who shall be the presiding arbitrator, appointed by agreement of the disputing parties, shall be a national of a non-Party which has diplomatic relations with the disputing Party and non-disputing Party, and shall not have permanent residence in either the disputing Party or non-disputing Party.
18. Arbitrators shall have expertise or experience in public international law, international trade, or international investment rules, and be independent of, and not be affiliated with or take instructions from the disputing Party, the non- disputing Party or the disputing investor.
19. The Appointing Authority shall serve as an appointing authority for arbitration under this Section.
20. If a tribunal has not been constituted within 75 days after the date that a claim is submitted to arbitration under this Article, the Appointing Authority, on the request of a disputing party, shall appoint, in his or her discretion, the arbitrator or arbitrators not yet appointed.
21. The disputing parties may establish rules relating to expenses incurred by the tribunal, including arbitratorâs remuneration.
22. Where any arbitrator appointed as provided for in this Section resigns or becomes unable to act, a successor shall be appointed in the same manner as prescribed for the appointment of the original arbitrator, and the successor shall have all the powers and duties of the original arbitrator.
Consolidation
23. Where two or more claims have been submitted separately to arbitration under paragraph 7, and the claims have a question of law or fact in common and. arise out of the same or similar events or circumstances, all disputing parties may agree to consolidate those claims in any manner they deem appropriate.
Conduct of the Arbitration
24. Where issues relating to jurisdiction or admissibility are raised as preliminary objections, a tribunal shall decide on the matter before proceeding to the merits.
25. A disputing Party may, no later than 45 days after the constitution of the tribunal, file an objection that a claim is manifestly without merit. A disputing Party may also file an objection that a claim is otherwise outside the jurisdiction or competence of the tribunal. The disputing Party shall specify as precisely as possible the basis for the objection.
26. The tribunal shall address any such objection as a preliminary question apart from the merits of the claim. The disputing parties shall be given a reasonable opportunity to present their views and observations to the tribunal. If the tribunal decides that the claim is manifestly without merit, or is otherwise not within the jurisdiction or competence of the tribunal, it shall render an award to that effect.
27. The tribunal may, if warranted, award the prevailing party reasonable costs and fees incurred in submitting or opposing the objection. In determining whether such an award is warranted, the tribunal shall consider whether either the claim or the objection was frivolous or manifestly without merit, and shall provide the disputing parties a reasonable opportunity to comment.
Place of Arbitration
28. Unless the disputing parties otherwise agree, the tribunal shall determine the seat of arbitration in accordance with the applicable arbitration rules, provided that the seat place shall be in the territory of a State that is a party to the New York Convention. (16)
29. Unless the disputing parties otherwise agree, the venue of arbitration shall be in the territory of either Party.
30. Where an investor claims that the disputing Party has breached Article 9.11 (Expropriation and Compensation) by the adoption or enforcement of a taxation measure, the disputing Party and the non-disputing Party shall, upon request from the disputing Party, hold consultations with a view to determine whether the taxation measure in question has an effect equivalent to expropriation or nationalisation. Any tribunal that may be established pursuant to this Article shall accord serious consideration to the decision of both Parties under this paragraph.
31. If both Parties fail either to initiate consultations referred to in paragraph 30, or to determine whether such taxation measure has an effect equivalent to expropriation or nationalisation within the period of 180 days after the date of the receipt of request for consultations referred to in paragraphs 5 and 6, the disputing investor shall not be prevented from submitting its claim to arbitration in accordance with this Article.
Transparency of Arbitral Proceedings
32. Subject to paragraphs 33 and 34, the disputing Party may make publicly available all awards and decisions produced by the tribunal.
33. Any of the disputing parties that intend to use information designated as confidential information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
34. Any information specifically designated as confidential that is submitted to the tribunal or the disputing parties, shall be protected from disclosure to the public.
35. A disputing party may disclose to persons directly connected with the arbitral proceedings such confidential information as it considers necessary for the preparation of its case, but it shall require that such confidential information is protected.
36. The tribunal shall not require a Party to furnish or allow access to information the disclosure of which would impede law enforcement or would be contrary to the Partyâs laws protecting Cabinet confidences, personal privacy or the financial affairs and accounts of individual customers of financial institutions, or which it determines to be contrary to its essential security.
37. The non-disputing Party shall be entitled, at its cost, to receive from the disputing Party a copy of the notice of arbitration, no later than 30 days after the date that such document has been delivered to the disputing Party. The disputing Party shall notify the other Party of the receipt of the notice of arbitration within 30 days thereof.
Governing Law
38. Subject to paragraphs 39 and 40, when a claim is submitted under paragraph 7, the tribunal shall decide on the issues in dispute in accordance with this Agreement, any other applicable agreements between the Parties, any relevant rules of international law applicable in the relations between the Parties, and, where applicable, any relevant law of the disputing Party.
39. The tribunal shall, on its own account or at the request of a disputing party, request a joint interpretation of any provision of this Agreement that is at issue in a dispute. The Parties shall submit in writing any joint decision declaring their interpretation to the tribunal within 60 days after the delivery of the request. Without prejudice to paragraph 40, if the Parties fail to issue such a decision within 60 days, any interpretation submitted by a Party shall be forwarded to the disputing parties and the tribunal, which shall decide on the issue on its own account.
40. A joint decision of the Parties declaring their interpretation of a provision of this Agreement shall be binding on a tribunal, and any decision or award issued by a tribunal must be consistent with that joint decision.
Awards
41. Where a tribunal makes a final award against either of the disputing parties, the tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest; and
(b) restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution.
42. A tribunal may also award costs and attorney's fees in accordance with this Article and the applicable arbitration rules.
43. A tribunal may not award punitive damages.
44. An award made by a tribunal shall be final and binding upon the disputing parties. An award shall have no binding force except between the disputing parties and in respect of the particular case.
45. Subject to paragraph 46 and the applicable review procedure for an interim award, a disputing party shall abide by and comply with an award without delay. (17)
46. A disputing party may not seek enforcement of a final award until:
(a) in the case of a final award under the ICSID Convention:
(i) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or
(ii) revision or annulment proceedings have been completed;
(b) in the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or the rules selected pursuant to subparagraph 8(b):
(i) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or
(ii) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.
47. Each Party shall provide for the enforcement of an award in its territory.
Annex 9A. SCHEDULE OF RESERVATIONS AND NON-CONFORMING MEASURES FOR INVESTMENT
Annex 9A. THAILAND
LIST A. EXPLANATORY NOTES
1. This Schedule is made pursuant to Chapter 9 (Investment) only. Any commitment of Thailand made pursuant to Chapter 8 (Trade in Services) is found in Thailand's Schedule in Annex 8A (Schedule of Specific Commitments - Thailand).
2. For the purposes of liberalisation, Chapter 9 (Investment) shall apply to investment, subject to Article 9.9 (Reservations and Non-Conforming Measures), in the following non-service sectors:
(a) manufacturing;
(b) agriculture;
(c) fisheries;
(d) forestry; and
(e) mining and quarrying.
3. List A sets out, pursuant to Article 9.9 (Reservations and Non-Conforming Measures), Thailand's measures that do not conform to the obligations under:
(a) Article 9.3 (National Treatment);
(b) Article 9.4 (Most-Favoured-Nation Treatment);
(c) Article 9.7 (Performance Requirements); or
(d) Article 9.8 (Senior Management and Board of Directors).
4. List A and List B, pursuant to Article 9.9 (Reservations and Non-Conforming Measures), follow the negative list with two-list approach as follows:
(a) List A sets out commitments in relation to existing non-conforming measures. Paragraph 1 of Article 9.9 (Reservations and Non-Conforming Measures) applies to this List only; and
(b) List B sets out policy flexibility in relation to measures in sectors, subsectors, and activities.
5. Thailand may add, withdraw or modify any of its reservations as set out in List A for a period of 24 months from the date of entry into force of this Agreement, provided that relevant non-conforming measure is in existence as of that date. Any such addition, withdrawal or modification will be notified to Sri Lanka, including the relevant laws and regulations. Such reservation shall be deemed to be part of this Schedule upon such notification.
6. Each entry in List A sets out the following elements, where applicable: (a) Sector refers to the sector or sectors for which an entry is made;
(b) Subsector refers to the specific industries, products, and activities for which the entry is made;
(c) Industry Classification refers to the activity covered by the entry, according to the International Standard Industrial Classification (SIC) Revision 4.
As necessary and appropriate, Thailand may specify the exact coverage of the entry if the entry does not exactly conform to the classification system;
(d) Level of Government specifies the level of government (e.g., Central or Regional) maintaining the measure for which the entry is made;
(e) Type of Obligation refers to the obligations of Article 9.3 (National Treatment), Article 9.4 (Most-Favoured-Nation Treatment), Article 9.7 (Performance Requirements) or Article 9.8 (Senior Management and Board of Directors), as the case may be, which does not apply to the listed measure;
(f) Description of Measure describes measures that do not conform to Article 9.3 (National Treatment), Article 9.4 (Most-Favoured-Nation Treatment), Article 9.7 (Performance Requirements), or Article 9.8 (Senior Management and Board of Directors) for which the entry is made; and
(g) Source of Measure is identified for transparency purposes only, for existing measures that apply to the sector, subsector, or activity covered by the entry.
7. In the interpretation of any entry, all elements of the entry shall be considered. The Description of Measure element shall prevail over all other elements.
8. These Explanatory Notes form an integral part of List A.
1. Sector: All sectors
Subsector -
Industry Classification -
Level of Government: All levels
Type of Obligation: National Treatment. Performance Requirements. Senior Management and Board of Directors
Description of Measure
In the case where the Head of the National Council for Peace and Order is of opinion that it is necessary for the benefit of reform in any field and to strengthen public unity and harmony, or for the prevention, disruption, or suppression of any act which undermines public peace and order or national security, the Monarchy, national economy or administration of State affairs, whether that act emerges inside or outside Thailand, the Head of the National Council for Peace and Order shall have the powers to make any order to disrupt or suppress regardless of the legislative, executive, or judicial force of that order. In this case, that order, act or any performance in accordance with that order is deemed to be legal, constitutional and conclusive, and it shall be reported to the National Legislative Assembly and the Prime Minister without delay.
In the event of the occurrence of an emergency situation and the Prime Minister considers that it is appropriate to use the force of administrative officials or police officers, civil officials or military officers to jointly provide assistance, prevent, remedy, suppress, withhold the emergency situation, rehabilitate or provide assistance to the people, the Prime Minister, upon the approval of the Council of Ministers, is empowered to declare an emergency situation applicable to the whole country or in some area or locality as necessary for the situation.
Source of Measure
- Constitution of the Kingdom of Thailand B.E. 2560 (2017)
- Martial Law B.E. 2457 (1914), as amended