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Association of Southeast Asian Nations (ASEAN) Arbitral Tribunal: Yaung Chi 00 Trading pte Ltd. v. Government of the Union of Myanmar (AWARD)*

Published online by Cambridge University Press:  10 July 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 42 , Issue 3 , May 2003 , pp. 540 - 559
Copyright
Copyright © American Society of International Law 2003

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Footnotes

*

This document was reproduced and reformatted from the text provided to the ILM office by a professor of law at the National University of Singapore.

References

1 Agreement among the Governments of Brunei Darussalam, the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore, and the Kingdom of Thailand for the Promotion and Protection of Investments, Manila, 15 December 1987: text at (1988) 27 International Legal Materials 612. The title was amended to read “ASEAN Agreement for the Promotion and Protection of Investments” by the Jakarta Protocol of 12 December 1996.

2 Protocol to Amend the Agreement for the Promotion and Protection of Investments, Jakarta, 12 September 1996: text at <http://www.aseansec.org/1950.htm>.

3 Framework Agreement on the ASEAN Investment Area,Makati, The Philippines,7 October 1998:text at <http://www.aseansec.org/2280.htm>.

4 See Declaration constituting an Agreement establishing the Association of South-East Asian Nations (ASEAN), Bangkok, 8 August 1967: 1331 United Nations Treaty Series 236.

5 See S Sucharitkul, “ASEAN Society: A Dynamic Experiment for South-East Asian Regional Co-operation” (1993) 1 Asian Ybk of International Law 113. See further <www.aseansec.org>.

6 (1996) 35 International Legal Materials 1086. See also the earlier Protocol on Improvements on Extension of Tariff Preferences under the ASEAN Preferential Trading Arrangements, Manila, 15 December 1987: text in (1988) 27 International Legal Materials 619.

7 Although Myanmar also acceded to the Jakarta Protocol, the Protocol is not in force because it has not been ratified by the Philippines.

8 Cf. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 United Nations Treaty Series 331, Article 30.

9 Text in (1996) 35 International Legal Materials 1067 at 1069.

10 (1990) 1ICSID Reports 569

11 See, e.g. the ELSI case, United States of America v. Italy ICJ Reports 1989 p. 15; Azinian v United Mexican States (1998) 5 ICSID Reports 269; Mondev International Ltd v United States of America Award of 11 October 2002, <www.state.gov/documents/organization/14442.pdf>, and ADF Group Inc. v United States of America Award of 9 January 2003, <http://www.state.gov/s/l/c3754.htm>.

12 U Hla Tun, “Investigation into the Affairs of Myanmar Yaung Chi Oo Company Ltd. (State JV Company), Final Inspection Report under Section 138 of the Myanmar Companies Act”, 23 June 1999.

13 See, e.g., American Manufacturing&Trading, Inc. v Republic of Zaire (1997) 5 ICSID Reports 11 at 25-26.

14 Cf Tradex Hellas SA v Republic of Albania (1999) 5 ICSID Reports 70 at 88-93.

15 Inaugural Meeting of the ASEAN Investment Area (AIA) Council, Manila, 8 October 1998, Joint Press Release, reprinted in Davidson, P. (ed.), Trading Arrangements in the Pacific Rim. ASEAN and APEC (Oceana, NY, Release 98–4, December 1998)Google Scholar Doc. I.B.12.e.

16 Inaugural Meeting of the ASEAN Investment Area (AIA) Council, Manila, 8 October 1998, Joint Press Release, reprinted in Davidson, P. (ed.), Trading Arrangements in the Pacific Rim. ASEAN and APEC (Oceana, NY, Release 98–4, December 1998)Google Scholar Doc. I.B.I2.e.

17 Article 12(2) preserves “the rights and obligations of the Member States under existing agreements to which they are parties.” The Respondent argued that the effect of paragraph (2) was to preserve its right under the 1987 Agreement not to be subjected to arbitration in respect of investments not falling within the scope of Article II of that Agreement. In the Tribunal's view, however, to read paragraph (2) as applying to the 1987 Agreement would contradict paragraph (1), which deals specifically with the 1987 Agreement and provides that the provisions of the 1998 Agreement shall prevail to the extent that they make “better or enhanced provisions” for investments. Paragraph (2) as a general provision should not be read as negating the specific terms of paragraph (1).

18 See above paragraph 23.

19 The booklet is available at <http://www.aseansec.org/view.aspfile=/economic/invest/hb_intro.htm>.

20 Agreement between the Government of the Republic of Philippines and the Government of the Union of Myanmar for the Promotion and Reciprocal Protection of Investments, Manila, 17 February 1998: ICSID Release 2001-1. The Agreement entered into force on 11 September 1998.

21 ISCID Case No. ARB/97/7, decision on jurisdiction of 25 January 2000, 5 ICSID Reports 396.

22 Cf. Mondev International Ltd v United States of America Award of 11 October 2002, <http://www.state.gov/documents/organization/14442.pdf>.