Burden and Standards of Proof
Kabir Duggal and Wendy W. Cai
Volume 3 (2018), Published under the auspices of Queen Mary University of London and EFILA
This Review is the first law yearbook that is specifically dedicated to the field of ‘European Investment Law and Arbitration’.
Published under the auspices of Queen Mary University of London and EFILA.
The European Investment Law and Arbitration Review is also available online.
Luke Nottage, Julien Chaisse and Sakda Thanitcul
Cambodia has undertaken several initiatives to attract foreign direct investment (fdi), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (asean) investment agreements and free trade agreements (ftas). This chapter first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (fdi) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The chapter then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.
In 2011, following almost fifty years of one-party military rule, Myanmar began a process of transition toward democracy. Alongside this process, the Government of Myanmar is pursuing a variety of reforms in the hope of attracting new foreign investment. This chapter examines elements of the national and international legal environment governing foreign investment in Myanmar. The focus is on Myanmar’s current approach to investment treaties and Myanmar’s experience of investor-state arbitration under such treaties to date, although the chapter also reviews Myanmar’s national laws that are relevant to international investment arbitration, notably its laws on foreign investment and on arbitration. The chapter highlights Myanmar’s position to date as a ‘rule-taker’ in the investment treaty regime. It draws attention to important differences between Myanmar’s experience with investment treaties and the experiences of other developing countries, as well as possible points of similarity.
Romesh Weeramantry and Mahdev Mohan
Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia’s least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (asean)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore’s highest court. This chapter will examine the history, evolution and current iteration of Laos’ relationship with international investment law and focus on the two investment treaty claims instituted against Laos. The chapter concludes with an appraisal of Laos’ need to maintain its investment treaty programme, despite the difficulties that may have arisen as a result of it being a respondent in investment treaty arbitrations.
Bruno Jetin and Julien Chaisse
Brunei Darussalam is a small open economy gifted with important oil resources which make it the second richest Southeast Asian economy after Singapore. Like all resource-rich countries, its main challenge is to diversify its activities to prepare for a post-oil sustainable economy. Attracting foreign direct investment in new sectors will be an important element of success in this endeavour. The legal framework governing investment will therefore be critical to foreign investors. Although the experience of Brunei in international investment treaties negotiations is rather limited from a quantitative point of view, the country has signed a number of treaties with partners such as China, Korea, Japan, and the other asean countries. This Chapter reviews the existing treaties with the object of assessing Brunei’s contribution to international investment policy in Asia and explaining Brunei’s trajectory in terms of investment rule-making, fdi trends and potential disputes.
Sungjoon Cho and Jürgen Kurtz
Amokura Kawharu and Luke Nottage
This chapter reveals many similarities and occasional differences in New Zealand and Australia concerning their laws on fdi screening and current approaches towards investment treaties, including the now politically sensitive issue of isds. Australia has been more active in concluding standalone bits, in light of considerably more outbound fdi (and a few claims now by its investors, notably against India and Indonesia), as well as somewhat more innovative in investment treaty drafting – although both Australia and New Zealand now largely follow the us approach epitomised by the Trans Pacific Partnership (tpp). Australia has also been subject to a high-profile isds claim, over tobacco plain packaging (2012–6), which has combined with political configurations in its bicameral parliament to complicate its contemporary approach to isds-backed treaty commitments. This recent caution may bring it closer to New Zealand’s overall trajectory, thus opening the way towards even closer collaboration to exert ‘middle power’ influence over existing and future treaty negotiations in the Asian region.