(7) A tribunal established under this Article shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.
(8) In the case of Canada, a tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach of this Agreement. For purposes of this paragraph, an order includes a recommendation.
(9) A tribunal may award, separately or in combination, only:
(a) Monetary damages and any applicable interest;
(b) Restitution of property, in which case the award shall provide that the disputing Contracting Party may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs in accordance with the applicable arbitration rules.
(10)(a) In the case of Canada, an award of arbitration shall be final and binding and shall be enforceable in the territory of Canada.
(b) In the case of Thailand, an award of arbitration shall be final and binding and shall be enforceable in accordance with and any amendment or successor legislation. and any amendment or successor legislation.
(11)(a) A claim that a Contracting Party is in breach of this Agreement, and that an enterprise that is a juridical person incorporated or duly constituted in accordance with applicable laws of that Contracting Party has incurred loss or damage by reason of, or arising out of, that breach, may be brought by an investor of the other Contracting Party acting on behalf of an enterprise which the investor owns or controls directly or indirectly. In such a case
(i) Any award shall be made to the affected enterprise;
(ii) The consent to arbitration of both the investor and the enterprise shall be required;
(iii) Both the investor and enterprise must waive any right to initiate or continue any other proceedings in relation to the measure that is alleged to be in breach of this Agreement before the courts or tribunals of the Contracting Party concerned or in a dispute settlement procedure of any kind; and
(iv) The investor may not make a claim if more than three years have elapsed from the date on which the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that it has incurred loss or damage.
(b) Notwithstanding subparagraph 11(a), where a disputing Contracting Party has deprived a disputing investor of control of an enterprise, the following shall not be required:
(i) A consent to arbitration by the enterprise under subparagraph 11(a) ; and
(ii) A waiver from the enterprise under subparagraph 11(a)(ii).
Article XIV. Consultations and Exchange of Information
Either Contracting Party may request consultations on the interpretation or application of this Agreement. The other Contracting Party shall give sympathetic consideration to the request. Upon request by either Contracting Party, information shall be exchanged on the measures of the other Contracting Party that may have an impact on new investments, investments or returns covered by this Agreement.
Article XV. Disputes between the Contracting Parties
(1) Any dispute between the Contracting Parties concerning the interpretation or application of this Agreement shall, whenever possible, be settled amicably through consultations.
(2) If a dispute cannot be settled through consultations, it shall, at the request of either Contracting Party, be submitted to an arbitral tribunal for decision.
(3) An arbitral tribunal shall be constituted for each dispute. Within two months after receipt through diplomatic channels of the request for arbitration, each Contracting Party shall appoint one member to the arbitral tribunal. The two members shall then select a national of a third State who, upon approval by the two Contracting Parties, shall be appointed Chairman of the arbitral tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members of the arbitral tribunal.
(4) If within the periods specified in paragraph (3) of this Article the necessary appointments have not been made, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make the necessary appointments. If the President is a national of either Contracting Party or is otherwise prevented from discharging the said function, the Vice–President shall be invited to make the necessary appointments. If the Vice–President is a national of either Contracting Party or is prevented from discharging the said function, the Member of the International Court of Justice next in seniority, who is not a national of either Contracting Party, shall be invited to make the necessary appointments.
(5) The arbitral tribunal shall determine its own procedure. The arbitral tribunal shall reach its decision by a majority of votes. Such decision shall be binding on both Contracting Parties. Unless otherwise agreed, the decision of the tribunal panel shall be rendered within six months of the appointment of the Chairman in accordance with paragraphs (3) or (4) of this Article.
(6) Each Contracting Party shall bear the costs of its own member of the tribunal and of its representation in the arbitral proceedings; the costs related to the Chairman and any remaining costs shall be borne equally by the Contracting Parties. The arbitral tribunal may, however, in its decision direct that a higher proportion of costs shall be borne by one of the two Contracting Parties, and this award shall be binding on both Contracting Parties.
(7) The Contracting Parties shall, within 60 days of the decision of a tribunal, reach agreement on the manner in which to resolve their dispute. Such agreement shall normally implement the decision of the tribunal. Such agreement shall also be considered part of the arbitral tribunal's decision. If the Contracting Parties fail to reach agreement, the Contracting Party bringing the dispute shall be entitled to compensation or to suspend benefits of equivalent value to those awarded by the panel.
Article XVI. Transparency
(1) The Contracting Parties shall, within a two year period after the entry into force of this Agreement, exchange letters listing, to the extent possible, any existing measures that do not conform to the obligations in subparagraph (3)(a) of Article II, Article IV or paragraphs (1) and (2) of Article V.
(2) Each Contracting Party shall, to the extent practicable, ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Contracting Party to become acquainted with them.
Article XVII. Application and General Exceptions
(1) This Agreement shall apply to any investment made by an investor of one Contracting Party in the territory of the other Contracting Party before or after the entry into force of this Agreement.
(2) Nothing in this Agreement shall be construed to prevent a Contracting Party from adopting, maintaining or enforcing any measure otherwise consistent with this Agreement that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns.
(3) Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures, including environmental measures:
(a) Necessary to ensure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement;
(b) Necessary to protect human, animal or plant life or health; or
(c) Relating to the conservation of living or non–living exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
(d) Imposed for the protection of national treasures of artistic, historic or archaeological value;
(e) Essential to the acquisition or distribution of products in general or local short supply, provided that any such measures shall be consistent with the principle that all investors are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist.
(4) The Annexes shall form an integral part of this Agreement.
Article XVIII. Entry Into Force
(1) Each Contracting Party shall notify the other in writing of the completion of the procedures required in its territory for the entry into force of this Agreement. This Agreement shall enter into force on the date of the latter of the two notifications for an initial period of ten years.
(2) Thereafter, this Agreement shall remain in force indefinitely unless either Contracting Party notifies the other Contracting Party in writing of its intention to terminate it. The termination of this Agreement shall become effective one year after notice of termination has been received by the other Contracting Party. In respect of investments or legally–binding commitments to invest made prior to the date when the termination of this Agreement becomes effective, the provisions of Articles I to XVII inclusive of this Agreement shall remain in force for a period of fifteen years.
Conclusion
IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
Arthur C. Eggleton
Minister for International Trade
Prachuab Chaiyasan
Minister of Foreign Affairs
Attachments
ANNEX I
(1) In accordance with Article IV, paragraph (3), Canada reserves the right to make and maintain exceptions in the sectors or matters listed below:
– social services (i.e. public law enforcement; correctional services; income security or insurance; social security or insurance; social welfare; public education; public training; health and child care);
– government securities – as described in SIC 8152;
– residency requirements for ownership of oceanfront land;
– measures implementing the Northwest Territories and the Yukon Oil and Gas Accords.
(2) In accordance with Article IV. paragraph (3), the Kingdom of Thailand reserves the right to make and maintain exceptions in the sectors or matters listed below:
- business in agriculture, i. e. rice farming, salt farming including manufacture of efflorescent salt but excluding rock salt mining, farming, gardening, livestock farming including cocoon raising, forestry, fishery;
- business in commerce, i.e., internal trade concerning local agricultural products, trade in real property;
- business in services, i. e., accountancy, attorneyship, architecture, advertisement, brokerage or agency, auction, haircutting, hair dressing, and beauty treatment;
- building construction;
- business in industry and handicrafts, i. e., rice mill, manufacture of flour from rice field crops, manufacture of sugar, manufacture of beverage, with and without alcoholic blending, manufacture of rice, manufacture of drugs, cold storage, wood processing, manufacture of products from gold. silver, niello or bronze, manufacture of casting of images of Buddha and manufacture of alms bowls, manufacture of wood carvings, manufacture of lacquerware, manufacture of all types of matches, manufacture of lime, cement or cement by-products, stone blasting or crushing.
(3) For the purpose of this Annex, "SIC" means, with respect to Canada, Standard Industrial Classification numbers as set out in Statistics Canada, Standard Industrial Classification, fourth edition, 1980.
(4) With regard to the definition of "investment" contained in Article I paragraph (f): in respect to the investment of an investor that is related to economic activities covered by the General Agreement on Trade in Services contained in the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations done at Marrakesh on 15th April 1994, a contracting party may decide to apply this Agreement only to an investment of an investor of the other Contracting Party in which more than fifty percent of the equity interest of such investment is beneficially owned by that investor, or in which that investor has the power to name a majority of its directors or otherwise legally direct its action. On request of either contracting party this matter will be reconsidered five years after the entry into force of this Agreement.
(5) Notwithstanding any other provision of this Agreement, The Contracting Parties agree that in respect of services, nothing in this Agreement shall oblige either Contracting Party to accord to investors, prospective investors, or to investments of investors of the other Contracting Party any treatment or right under Articles (3) (a) of Article IL paragraph (1) above, or paragraphs (1) or (2) of Article VI more favourable than that which the first Contracting Party is required to accord to such investor, prospective investor or investment pursuant to the General Agreement on Trade in Services ("GATS") Final List of Article II (MFN) Exemption, as it may from time to time be amended or replaced.
Attachments
ANNEX II
28 July B.E. 2537 (1994)
No. 0201/9549
Secretariat of the Cabinet
Government House,
Bangkok 10300
Subject: Establishment of the Committee for Approval of Investments under the Agreement for the Promotion and Protection of Investments between Thailand and other Countries
To: Minister of Foreign Affairs
Reference: Ministry of Foreign Affairs' Note No. 0504/45710, dated 7 July B.E. 2537 (1994)
Reference is made to the Ministry of Foreign Affairs' proposal on the subject of an establishment of the Committee for Approval of Investments under the Agreement for the Promotion and Protection of Investments between Thailand and other Countries, submitted to the Cabinet for its consideration and approval.
The Cabinet, in its decision on 26 July B.E. 2537 (1994) approved the establishment of the said Committee, as proposed by the Ministry of Foreign Affairs.
This Note serves to confirm the above, which has also been conveyed for information to the Ministry of Finance and the Bureau of the Budget.
Nopadol Hengjaroen
Deputy Secretary–General, for the Secretary–General