Professional Documents
Culture Documents
Domestic law;
State contracts;
Domestic Law
State Contracts
What is a BIT?
Others argue that the international minimum standard has evolved over
time and is converging with the autonomous standard.
3. National Treatment
5. Umbrella Clauses
Gateway Requirements
Example: BIT between Australia and Indonesia (AI BIT), entry into
force: 29 July 1993.
Neither Party shall subject investors of the other Party to treatment less
favorable than that which it accords to investors of any third country (as
regards their management, use, enjoyment or disposal of investments or
returns, or any other activities associated with investments)
Indonesian BITs
GoI intends not to renew its BITs which expired with other countries,
e.g.: with the Netherlands on 1 July 2015, France on 29 April 2015,
Italy on 25 June 2015, Switzerland on 9 April 2016);
Purported reason:
High profile cases in UNCITRAL arbitration, such as cases involving
(i) Karaha Bodas and Pertamina, (ii) Himpurna and PT PLN, (iii) PT
Newmont Nusa Tenggara against the GoI) and ICSID arbitration
(pending: claims submitted by Churchill Mining Plc of the UK and
Planet Mining Pty Ltd of Australia);
Post-Termination of BITs
1. National treatment
Investors must be treated in the same way as local investors
ASEAN Member States can make reservations relating to national treatment
(Art. 9 ACIA)
Indonesia made 35 reservations, i.e.:
- National treatment may not apply to any measures affecting land, property and
natural resources associated with land, including acquisition, ownership and
lease of land and property;
- Foreign investor investing in Indonesia must take the form of an Indonesian
limited liability company (Perseroan Terbatas or PT);
- Divestment requirement
5. Protection: Additional
Other non-discrimination measures (Art. 8 ACIA)
- ASEAN investors allowed to elect senior management, irrespective
of their nationalities, to manage their investments in ASEAN (Art. 8
ACIA);
- ASEAN Member States prohibited from imposing any performance
requirement (incorporation by reference of WTO Agreement on
Trade-Related Investment Measures or TRIMS)
General Exceptions
Dispute Resolution