Title
AGREEMENT
BETWEEN
THE GOVERNMENT OF THE KINGDOM OF THAILAND
AND
THE GOVERNMENT OF THE UNION OF MYANMAR FOR THE PROMOTION AND PROTECTION OF INVESTMENTS
Preamble
The Government of the Kingdom of Thailand and the Government of the Union of Myanmar, hereinafter referred to as the "Contracting Parties";
Desiring to create favourable conditions for greater economic cooperation between both States and, in particular, for the investments by investors of one Contracting Party in the territory of the other Contracting Party;
Recognising that the promotion of such investments and the reciprocal protection of investments will be conducive to the stimulation of individual business initiative and will increase prosperity in both States;
Have agreed as follows:
Body
Article 1. Definitions
For the purpose of this Agreement:
1. The term "investment" shall mean every kind of asset and in
Particular, though not exclusively, includes:.'
a) movable and immovable property and any other property rights such as mortgages, liens and pledges;
b) shares, stocks and debentures of a company and any other similar forms of participation in a company;
c) claims to money and any other rights to performance under contract having an economic value;
d) intellectual property and industrial property rights as recognised by the law of the Contracting Party in whose territory the investment is made, know-how, and goodwill;
e) business concession, licence, authorisation, and permit conferred pursuant to laws and regulations or contracts including concessions to search for, cultivate, extract, or exploit natural resources.
Any alteration of the form in which assets are invested shall not affect their nature as an investment, provided that such alteration is consistent with the laws and regulations of the Contracting Party in whose territory the investments were made.
2. The term "investor" shall mean with regard to either Contracting
Party:
a) natural persons who, according to the law of that Contracting Party, are considered to be its nationals; and
b) juridical persons, including companies, corporations, business associations and other organisations, which are constituted or otherwise duly organised under the law of that Contracting Party and have their seat, together with real economic activities, in the territory of that same Contracting Party.
3. The term "returns" shall mean amounts yielded by an investment and in particular, though not exclusively, includes profits, interests, capital gains, dividends, royalties, or fees.
4. The t,erm "territory" shall mean, with respect to each Contracting Party, the territory of that Contracting Party including its internal waters, its territorial seas, and any maritime areas over which that Contracting Party has sovereign rights or jurisdiction under international law.
5. The term "freely usable currency" shall mean currency that the
International Monetary Fund determines, from time to time, as freely usable currencies in accordance with the Articles of Agreement of the International Monetary Fund and Amendments thereafter.,
Article 2. Scope of Application
1. The benefits of this Agreement shall apply only in cases where the investment by investor of one Contracting Party in the territory of the other Contracting Party has been specifically approved in writing, if so required, by the competent authorities of the latter Contracting Party. Such Competent Authority of the Government of the Kingdom of Thailand shall be as ANNEX (A) and Competent Authority of the Government of the Union of Myanmar shall be as ANNEX (B).
2. Investor of either Contracting Party shall be free to apply for such approval in respect of any investment whether made before or after the entry into force of this Agreement. However, this Agreement shall not apply to disputes which arise before its entry into force.
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Article 3. Promotion and Protection of Investments
1. Each Contracting Party shall encourage and create favourable conditions in its territory for investments of the investors of the other Contracting Party and shall admit such investments in accordance with its laws and regulations.
2. Investments of investors of either Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of investors of the other Contracting Party.
3. The Contracting Parties shall within the framework of their national legislation give sympathetic consideration to applications for the entry and sojourn of pationals of either Contracting Party who wish to enter the territory of the other Contracting Party in connection with an investment: the same shall apply to employed persons of either Contracting Party who in connection with an investment wish to enter the territory of the other Contracting Party and sojourn there to take up employment. Applications for permit shall also be given sympathetic consideration.
Article 4. Treatment of Investments after Establishment
1. Each Contracting Party shall in its territory accord investors or investments and returns of the other Contracting Party, as regards management, maintenance, use, enjoyment or disposal of their investments, treatment not less favourable than that which it accords to its own investors or investors of any third State, whichever is more favourable, and subject to its laws and regulations.
2. The provisions of paragraph 1 of this Article shall not be construed so
As to oblige one Contracting Party to extend to the investors of the other the
Benefit of any treatment, preference or privilege which may be extended by the former Contracting Party by virtue of:
a) any customs union or free trade area or a monetary union or similar international agreements leading to such unions or other forms of regional cooperation to which either of the Contracting Party is or may become a party;
b) any international agreement or arrangement or any domestic legislation relating wholly or mainly to taxation.
Article 5. Compensation for Losses
1. Investors of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection, riot or other such similar activity in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own investors or to investors of any third State, whichever is more favourable to the investors. Resulting payments shall be freely transferable in a freely usable currency.
2. Withput prejudice to paragraph 1 of this Article, investors of one Contracting Party who, in any of the situations referred to in that paragraph, suffer losses in the territory of the other Contracting Party, resulting from:
a) requisitioning of their property by the latter Contracting Party's forces or authorities, or
b) destruction of their property by the latter Contracting Party's forces
Or authorities, which was not caused in combat action or was not required by the necessity of the situation.,
Shall be accorded prompt, adequate and effective compensation or restitution. Resulting payments shall be freely transferable in a freely usable currency.
Article 6. Expropriation and Compensation
1. Investments of investors of either Contracting Party shall not be expropriated, nationalised or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation") in the territory of the other Contracting Party except for public purposes,
Under due process of law, on a non-discriminatory basis and against prompt, effective and adequate compensation.
2. The compensation shall amount to the market value of the investments expropriated immediately before the date of expropriation or before the impending expropriation becomes public knowledge, whichever is the earlier, and shall be paid without delay and shall carry interest at the rate applicable in the territory of that Contracting Party from the date the payment was due until the date of actual payment. The payment of such compensation shall be freely transferable in a freely usable currency.
3. The investor affected shall have a right, under the law of the Contracting Party making the expropriation, to review, by a judicial or other independent authority of that Contracting Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in paragraphs 1 and 2. The Contracting Party making the expropriation shall make every endeavour to ensure that such review is carried out promptly.
Article 7. Free Transfer
1. Each Contracting Party shall guarantee to the investors of the other Contracting Party, after the fulfillment of fiscal obligations of the investors, and having taken in good faith such measures as necessary to safeguard the integrity andj stability of its currency, external financial position and balance of payments; the free transfer, in a freely usable currency, of:
a) capital and additional amounts intended to maintain or increase the investment;
b) profits, dividends, capital gains, and proceeds from the sale of all or any part of the investment;
c) proceeds obtained from the total or partial liquidation of the investment;
d) interest, royalty payments, management fees, and technical assistance and other fees relating to the investment;
e) payments paid under a contract relating to the investment;
f) payments arising out of a dispute;
g) funds in repayment of loans relating to the investment;
h) compensation payable in accordance with Articles 5 and 6;
i) the remuneration received by the nationals of the other Contracting Party for work or services done in connection with investments made in its territory, in accordance with its laws and regulations.
2. The transfers referred to in the preceding paragraph shall be made without delay, at the prevailing market rate of exchange applicable on the
Date of the transfer in the territory of the other Contracting Party where the investment was made.
3. All transfers under this Article shall receive treatment no less favourable than that accorded to the transfers of an investment made by an investor of any third State.
Article 8. Subrogation
1. If either Contracting Party or an agency designated by it makes payment to an investor under a policy of insurance against noncommercial risks, which it has given in respect of any investment or any part thereof in the territory of the other Contracting Party, the latter Contracting Party shall recognise:
a) the assignment, whether under law or pursuant to a legal transaction, of any right or claim from such an investor to the former Contracting Party or its designated agency; and
b) that the former Contracting Party or its designated agency is entitled by virtue of subrogation to exercise the rights and enforce the claims of such an investor.
2. The former Contracting Party or its designated agency shall, accordingly, ^ be entitled to assert, if it so desires, any such right or claim to the' same extent as its predecessor in title.
3. If the former Contracting Party acquires amounts in the lawful
Currency of the other Contracting Party or credits thereof by virtue of an assignment under subparagraph (a) of paragraph 1 of this Article, such amounts and credits shall be freely available to the former Contracting Party for the purpose of meeting its expenditures in the territory of the latter Contracting Party.,
Article 9. 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 foreign investment policies, laws and regulations of the other Contracting Party that may have an impact on new investments, investments or returns covered by this Agreement.
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Article 10. Application of other Rules
1. If the provisions of the law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to the present Agreement contain rules whether general or specific, entitling investments and returns of investors of the other Contracting Party to treatment more favourable than that which is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement.
2. Each Contracting Party shall observe any other obligation it may have entered into with regard to investments of investors of the other Contracting Party.
Article 11. Settlement of Disputes between Investor and the Contracting Party
1. In case of dispute with respect to investments between a Contracting Party and an investor of the other Contracting Party, consultations shall take place between the parties concerned with a view to solving the case amicably.
2. If thejse consultations do not result in a solution within six months from the date that written notification has been received, the investor may submit the dispute, at the investor's choice, for settlement:
a) to the competent courts of the Contracting Party in the territory of which the investment has been made; or
b) to an arbitrator or international ad hoc arbitral tribunal established
Under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL); or.
c) to the International Centre for Settlement of Investment Disputes in case both Contracting Parties are Contracting States to the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington D.C. on March 18, 1965.
3. The arbitral tribunal established under this Article shall reach its decision on the basis of national laws and regulations of the Contracting Party, which is a party to the dispute, the provisions of the present Agreement, as well as applicable rules of international law.
4. All arbitral awards shall be final and binding on the parties to the dispute and shall be enforced in accordance with the laws of the Contracting Party.
5. All sums received or payable as a result of a settlement shall be freely transferable in a freely usable currency.
Article 12. Settlement of 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 approyal 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 arbitral tribunal 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 proceeding; 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.
Article 13. Preservation of Rights
This Agreement shall in no way restrict the rights and benefits conferred to an investor of one Contracting Party by the provisions of national law of the other Contracting Party or on the basis of commitments made in international agreements which both Contracting Parties have entered into.
Article 14. Final Provisions
1. Each Contracting Party shall notify the other in writing of the completion of the internal legal procedures required in its territory for the entry into force of this Agreement. This Agreement shall enter into force on the date of the later 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 made prior to the date when the termination of this Agreement becomes effective, the provisions of this Agreement shall remain in force for a period of ten years.
3. This Agreement may be amended in writing by mutual consent of the Contracting Parties. Any amendment shall enter into force after each Contracting Party has notified the other Contracting Party in writing that it has completed all internal requirements for the entry into force of such amendment.
Attachments
1. Competent Authority shall mean the Committee on the Approval for the Protection of Investment under the Agreement on the Promotion and Protection of Investment between Thailand and Other Countries (the "Committee") chaired by the Ministry of Foreign Affairs of Thailand.
2. Applications for approval of investments shall be governed by the Announcement of the Committee on the Approval for Protection of Investment between Thailand and Other Countries (2003), as may be amended.
3. Procedures for application of approval of investments are as follows:
(a) Investors of the Union of Myanmar shall submit the application for the Certificate of Approval for Protection ("C.A.P.") to the Committee through the Ministry of Foreign Affairs giving full information on their intended investments.
(b) The Committee shall consider the application of the investors without undue delay and inform the result to the investors within a period of 60 days from the date of receipt of the application. In exceptional cases, if the Committee deems it necessary, it may extend the time to consider the application of approval for another period of 60 days.
4. In granting the C.A.P., the Committee shall take into consideration the benefits that would result from the applicant's intended investment in relation to, inter alia:
(a) the nation's safety and security;
(b) the nation's economic and social development;
(c) technology transfer and research for development;,
(d) public order and good moral;
(e) art, culture and tradition of the country;
(f) natural resource conservation, energy and environment protection; and
(g) consumer protection.
1. Competent Authority shall mean the Ministry of National Planning and Economic Development of the Union of Myanmar on the Approval for the Protection of Investment under the Agreement on the Promotion and Protection of Investment between Myanmar and Other Countries.
2. Applications for approval of investments shall be governed by the Announcement of the Ministry of National Planning and Economic Development on the Approval for Protection of Investment between Myanmar and Other Countries, as may be amended.
3. Procedures for application of approval of investments are as follows:
(a) Investors of the Kingdom of Thailand shall submit the application for die Certificate of Approval for Protection ("C.A.P.") to the Ministry of National Planning and Economic Development giving full information on their intended investments.
(b) The Ministry of National Planning and Economic Development shall consider the application of the investors without undue delay and inform the result to the investors within a period of (60) days from the date of receipt of the application. In exceptional cases, if the Ministry of National Planning and Economic Development deems it necessary, it may extend the time to consider the application of approval for another period of (60) days.
4. In granting the C. A.P., the Ministry of National Planning and Economic Development shall take into consideration the benefits that would result from the applicant's intended investment in relation to, inter alia:
(a) export oriented;:
(b) exploitation of natural resources which require heavy investment;
(c) transfer of know-how and technology to Myanmar national;
(d) supporting and assisting production and services involving large capital;
(e) employment opportunities;
(f) exploitation and production of new energy sources;
(g) development of new energy sources such as bio energy;
(h) regional development;
(i) national security and public morals;
(j) culture and tradition of the country;
(k) safeguard the balance of payment; and
(l) infrastructure development.