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Wednesday 23 April 2014

Free access to Journal of World Investment & Trade untill 31 december 2014


Individuals are eligible for free access to The Journal of World Investment & Trade until 31 December 2014, using access token JWIT4U.
Activate your free access in 4 easy steps:

2. register to create your own user account
3. go to my account and click on add content
4. enter access token and manage your publication alerts

The Journal of World Investment & Trade (JWIT) is a double-blind peer-reviewed journal that focuses on the legal aspects of foreign investment relations in a broad sense. This encompasses the law of bilateral, multilateral, regional and sectoral investment treaties, investor-State dispute settlement, and domestic law relating to foreign investment, but also relevant trade law aspects, such as services, public procurement, trade-related investment measures, and intellectual property, both under the WTO framework and preferential trade agreements. In addition, the Journal aims to embed foreign investment law in its broader context, including its interactions with international and domestic law, both private and public, including general public international law, international commercial law and arbitration, international environmental law, human rights, sustainable development, as well as domestic constitutional and administrative law.
The Journal is institutionally independent and ideologically neutral. It is not attached to specific national jurisdictions, but has a global outreach. It covers both the mainstream of foreign investment law and investment law’s frontiers. It offers a place for the publication of scholarly studies dealing with fundamental and systematic problems of foreign investment relations and their solutions, but also welcomes analyses of current topics, such as international and domestic policy trends, relevant case law, and country- or industry-specific case studies, including in the natural resources and energy sectors. It is open to doctrinal analysis as well as theoretical, conceptual, and interdisciplinary approaches, including law and economics analysis, empirical analysis, historical analysis, political science analysis, or normative analysis. It aims to address scholars, government officials, members of international and non-governmental organizations, and legal practitioners in both capital-exporting and capital-importing countries.

Thursday 17 April 2014

ASEAN Regional Forum on Investment (21-22 September 2011, Manila)


Between 20 and 21 September 2011, 40 ASEAN campaigners and experts met in Manila to share knowledge and experiences, articulate common strategies and discuss alternatives to the current investment regime. 
The presentations exposed how International investment agreements (IIAs), such as Free Trade Agreements and Bilateral Investment Treaties (BITs), pose a threat to economic, social, cultural and environmental rights, as well as to democracy and people's sovereignty.
You can find some of the communications on the website of Trade & Investment by clicking here.

Wednesday 16 April 2014

Campus International

L'Ordre des Avocats de Paris organise, since 2013, Campus International which gather lawyers in France and Asia. The first edition toke place in Vietnam (7-10 april 2013), and the second in Cambodia (16-18 april 2014).

You can find below some of the communications (in french) related to the subject of "INVESTMENT".

Le Vietnam au sein de l'Asie : Cadre économique et institutionnel 1
Le Vietnam au sein de l'Asie : Cadre économique et institutionnel 2
Le Vietnam au sein de l'Asie : Cadre économique et institutionnel 3


Entreprendre et investir en Asie : Chine, Hong Kong et Singapour 1
Entreprendre et investir en Asie : Chine, Hong Kong et Singapour 2


Présentation politique et économique de l'ASEAN
Intervention de Jean-Jacques Guillaudeau

Investissements dans l'ASEAN : opportunités et restriction
Intervention de Nicolas Audier

Infrastructures et financements dans l'ASEAN
Intervention de Samantha Campbell

Structuration juridique et fiscale des acquisitions dans l'ASEAN
Intervention de Thierry Gougy

L'arbitrage dans l'ASEAN
Intervention de Olivier Monange

Investissements étrangers au Cambodge
Intervention de Jean-Jacques Guillaudeau
Intervention de Antoine Fontaine

Tuesday 15 April 2014

Cambodian parliament ratifies protocol on Cambodia-Vietnam investment agreement


Xinhua | 2014-4-3 20:43:17 
By Agencies
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The National Assembly of Cambodia on Thursday ratified a protocol on the investment promotion and protection agreement between the governments of Cambodia and Vietnam.

All 64 lawmakers of the ruling party, who were present at the parliamentary session, unanimously approved the protocol as the opposition party's 55 lawmakers-elect continued boycotting the parliament in protest against the election results in July last year.

Mok Mareth, chairman of Commission on Investment, Agriculture, Rural Development, Environment, and Water Resources at the National Assembly, said the protocol was part of ensuring confidence of investors and facilitating investment between the two countries.

"Under this protocol, Cambodia will move a step forward to attract investment from Vietnam and gain more confidence from Vietnamese investors," he said.

Sok Chenda Sophea, secretary general of the Council for the Development of Cambodia, said the protocol was aimed to maintain, promote and facilitate investment affairs between the two neighbors.

"A lot of Vietnamese investors are doing businesses in Cambodia, " he said, adding that the protocol would help maintain existing Vietnamese investors and attract more new investors.

Vietnam is the fifth biggest investor in Cambodia, with 128 projects worth over 3 billion US dollars by 2013, according to the Association of Vietnamese Investors in Cambodia.

Thursday 10 April 2014

Cambodian investment law's reform ?


Rethinking investment laws

By Eddie Morton, 9 april 2014, The PhnomPenhPost
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Cambodia’s 11-year-old investment law may be the most liberal in the region, according to the World Bank, but in practice, day-to-day business operations are far from simple, economists and business operators say.
Mey Kalyan, senior adviser to the Supreme National Economic Council, said that despite a generation of economic growth resulting from Cambodia’s lenient laws governing foreign direct investment (FDI), unclear registration and tariff schemes remain hurdles for daily business operations and the laws are out of date.
“From a historical perspective, Cambodia started its economic development from an empty hand. So the only way to activate its economy was to adopt a liberal system,” Kalyan said.
“We need to review our FDI laws in order to reflect the new reality and the economic direction that we want to go because our laws were formulated a long time ago.”
He added that despite Cambodia’s easily accessed economy, daily business operations such as acquiring certificates and permits, registration and informal payments remain hurdles for foreign business.
The call for a rethink on FDI laws comes after the World Bank on Monday released its East Asia and Pacific Economic Update. The report ranked Cambodia as the most liberal nation in the region for foreign investment, with Singapore coming in second. Thailand, the Philippines and Malaysia meanwhile, rank as the most restrictive nations for FDI, according to the Bank’s report.
“Regional experience indicates that where countries have relaxed foreign ownership restrictions, FDI has increased . . . In Cambodia and Vietnam, foreign investment reforms led to significant growth in FDI,” the report says.
Established in 1994, Cambodia’s investment laws were loosened in 2003 to allow 100 per cent foreign ownership of any business, relaxing of certain import duties and allowing renewable land leases of up to 99 years.
According to World Bank figures FDI has increased dramatically from less than $200 million in 2003 to $1.41 billion in 2012. There was a decline last year to $1.2 billion that the bank attributed to uncertainty brought on by post- election turmoil, but the bank estimates FDI to be on the rise again over the next three years reaching $1.52 billion in 2016.
On average, the Asean region allows 72 per cent of a business entity to be foreign owned, according to the World Bank report, making it the least liberal of nearly all regions across the globe for allowable foreign ownership.
Associate principal at China Market Research, James Roy, said Cambodia’s foreign investment laws are crucial to keeping the country competitive with Thailand and Vietnam. However, it is important that FDI is used to generate domestic benefits.
“Allowing 100 per cent foreign ownership, along with protections against nationalisation, helps lower the perceived risk for companies to invest in Cambodia,” he said.
“There are dangers especially if most of the gains of economic growth are retained by foreign-owned companies and do not translate to Cambodians themselves and improve their lives.”
In November last year, Sok Chenda, secretary-general of the Council for the Development of Cambodia, announced that there would be changes to the Kingdom’s investment laws.
Chenda said at the time Cambodia’s investment climate needed to be cleaned up and adjusted to suit the new economic environment and to remain competitive with countries like Myanmar.
A specific date for a law revision has yet to be announced.
But attractive investment laws are just one part of the draw for FDI. More is needed to improve the regulatory environment for starting up a businesses and enabling cross-border trade if Cambodia is to improve on it’s current ranking of 137 out of 189 economies on the World Banks ease of doing business index.
Despite 12 months of market research on Cambodia, India-based Tata International Ltd, incurred delays and struggled to find enough qualified staff when they began operations in farm machinery sales in November.
“The cost of doing business on a daily basis was quite a bit higher than what we initially assumed,” Jitendra Manghinani, country manager of Tata South East Asia (Cambodia), said. “That all said, we have seen growth much better than our expectations,”

Tuesday 8 April 2014

Cambodia Leads Doubts Over Asean Economic Community




In a rare moment of honesty a Cambodian official has admitted his doubts about his country’s ability to meet regional expectations in time for the launch of the much vaunted ASEAN Economic Community (AEC) by the end of 2015.
“If you talk about short-term: Yes, we are not ready,” Chuop Narath, deputy director of the department of employment and manpower at Cambodia’s Labor Ministry, said during a recent labor rights forum.
ASEAN officials and senior ministers from each government of the 10-member trading bloc have been adamant—after several setbacks—that a single regional market would fly by the end of Myanmar’s turn as chair next year.
However, doubts have persisted over their insistence, particularly in regards to poorer members like Cambodia, Laos, Vietnam and Myanmar. This is in part due to the marked cultural differences within the Association of Southeast Asian Nations (ASEAN).
Brunei stunned many in the region when it announced that it would shortly impose Sharia law. Thailand remains on the perennial brink of a political meltdown while the ethnic and religious divides in Malaysia have rarely been greater.
As great as those cultural differences is the economic gulf between rich and poor. Singapore, ASEAN’s richest country, is ranked third on the World Bank’s rich list in terms of GDP, Laos and Cambodia sit near the bottom at 141 and 147 respectively.
Chuop Narath said it was up to the region’s leaders to decide whether a further delay of the AEC should be initiated. He also noted the most basic of issues confronting the weaker members who sit near the bottom of the global heap in social development when he said: “For the long-term, we have to learn how to compete.”
His sentiments were backed by analysts. Gavin Greenwood, a risk analyst with Hong Kong-based Allan & Associates, said when ASEAN leaders launched their outline for an AEC in 1997 the timeframe would have appeared conservative, perhaps even overly cautious given the economic transformation experienced among core members in the preceding two decades.
That core includes Singapore, Indonesia, Philippines, Thailand and Malaysia.
“With around eight months now left before key elements that comprise the AEC Blueprint are due to take effect such aspirations appear at best highly optimistic and at worst almost delusional,” Greenwood told The Diplomat.
The AEC has at times been compared with the European Union (EU) but the reality falls short of those expectations. There will be no single currency and the cross-border movement of labor will be highly regulated.
Nevertheless ASEAN’s goal – in its own words – is for regional economic integration, a single market and production base in a highly competitive economic region of equitable economic development fully integrated into the global economy to be achieved through the free movement of goods, services, investment, skilled labour and freer flow of capital.
The blueprint was finalized in 2007 and a commitment to launch on time was reaffirmed in February despite an internal ASEAN assessment that found implementation rates of targets needed to launch the AEC had slipped to 72 percent in December from 79 percent in mid-2013.
Greenwood also noted ASEAN’s own internal assessments had found that efforts to implement those measures, requiring a move beyond theory and into operational practice, were lagging behind the rhetoric.
“Seemingly iron cast definitions — including the Blueprint’s 2015 delivery date — are now being reassessed and nuanced, a process that can be expected to broaden and deepen as the deadline nears,” he said. “As reality draws near, so does enthusiasm for implementing what appear to be such straightforward commitments.”
Nevertheless, higher-end industries already established in core countries such as medicine, chemical, heavy industry and banking and finance are expected to thrive.
Banks are realigning ahead of the AEC while transport was also expected to do well, which is where Myanmar, Laos, Cambodia and Vietnam are crucial in terms of opening up overland routes through road and rail for regionally produced goods into India and China.
Commercial shipping was touted as another big winner, although shipping concerns in Indonesia say they will not be ready to compete within the AEC framework until the government implements transport reforms.
This includes cuts to the value added tax on loading and unloading alongside further financial incentives to promote the country’s maritime industry and a removal of policies that favor state-owned port operators over the private sector.
Trade within ASEAN has risen sharply since 2010, reaching $323 billion in 2013, fueled largely by a reduction in cross-border tariffs. The bloc’s combined gross domestic product was expected to go as high as $3.0 trillion by 2015, with a total population of more than 600 million people. That compares with $1.8 trillion in India and $8.3 trillion in China.
But contributions to the broader regional economy from poorer countries were expected to be restricted to the provision of cheap and menial labor for plantations, factories, farms, construction and domestic helpers which has emerged source of friction between neighbors.
Malaysia and Singapore, where domestic helpers have emerged as a status symbol for the middle classes, have faced constant criticism over the treatment of maids, with employers offering poor living conditions, few if any days off and paltry wages.
This treatment has irritated governments in home countries like Indonesia, Philippines and Cambodia where some see the deployment of women as maids in foreign lands as a national embarrassment.
Dave Welsh, Cambodia program director for U.S.-based labor group the Solidarity Center, said there were expectations that the AEC would enable workers from poorer member states to be more easily placed in jobs that were traditionally held by migrant laborers.
“In other words, we should see an increase in numbers and less hassle in Cambodians assuming jobs at the lower end of the skill set, which tend to be medium to low paid jobs with little protection,” he said.
The virtue of this, Welsh said, was that shady practices in migration bordering on human trafficking could be eliminated because the middle men arranging visas and associated paperwork should become obsolete.
“The reality I suspect will be a boom in job placement agencies, which if not tightly regulated will continue with the same extortionate, at least financially extortionate, practices,” he told The Diplomat.
Equally, there was a promise that low-skilled workers crossing borders for employment would have the right to join unions where they exist and automatically qualify for social security in the country where the work would be conducted.
Welsh said this would work both ways.
The Cambodian garment sector generated $5.5 billion in revenue last year from 600 factories and according to the industry can absorb a further 150,000 workers in a workforce that currently comprises 400,000 people.
“Cambodians, for a variety of reasons, aren’t filling these positions and the industry’s growth, despite current problems shows no sign of abating,” Welsh said.
“As a result, for the first time, you could see large scale migration from other parts of ASEAN of workers lured into the garment sector with unpredictable effects on wages and conditions, but very possibly negative effects on both,” he said.
Similar issues are likely to complicate business and politics in Myanmar, which is hoping to turn its moribund economy around with the opening of its garment sector. But Welsh—like Greenwood and Chuop Narath—also said it was highly unlikely the weaker members of ASEAN would be ready for the AEC launch by the end of next year anyway.
“From a political standpoint the timeline might be ambitious given the turmoil in the region,” he added.
Luke Hunt can be followed on Twitter @lukeanthonyhunt

Tuesday 1 April 2014

Indonesia terminates its Bilateral Investment Treaty (BIT) with the Netherlands


By Hogan Lovells LLP, 26 march 2014
Indonesia has decided to terminate its Bilateral Investment Treaty (BIT) with the Netherlands, pursuant to a statement issued by the Dutch Embassy in Jakarta on 21 March 2014.  The termination will be effective from 1 July 2015.  However, because of a "sunset" provision in the BIT, its protections will extend for existing investments of investors until 1 July 2030.  
Indonesian Vice President Boediono confirmed Indonesia's decision at a summit in The Hague on 23 March 2014.  He pledged that "Indonesia will create a new bilateral investment agreement that will be adjusted to recent developments", though Indonesia has not yet presented details on any proposed new investment treaty framework.  "The Indonesian Government has also mentioned that it intends to terminate all of its 67 bilateral investment treaties," according to the Dutch Embassy in Jakarta.  However, it is not yet apparent whether Indonesia will indeed choose to terminate additional BITs.   
Indonesia has not yet given reasons for its decision.  Commentators have speculated that the move may be connected with certain unfavourable decisions against the country in existing BIT claims by foreign investors.  For example, Churchill Mining of the UK has recently overcome Indonesia's challenges to the jurisdiction of an arbitral tribunal.  Its claims for damages of over USD 1 billion excluding interest will therefore proceed to the merits stage.  This decision was heavily criticised in Indonesia.  
While certain countries have terminated individual BITs, termination of all BITs would be unprecedented.  South Africa recently decided to review all of its BITs, to terminate its BITs with certain EU countries, and to consider a new investment policy that eliminates recourse to international arbitration and certain substantive investment protections.  Further, certain Latin American countries, such as Argentina, Ecuador and Venezuela have also taken steps to curtail their international investment protection regimes.   
A termination of additional BITs by Indonesia would ironically come at a time when many of Indonesia's neighbours such as Singapore, Malaysia, Vietnam, Australia and New Zealand are negotiating the Trans-Pacific Partnership Agreement, a 12-country multilateral trade and investment treaty which it is understood will likely include an Investment Chapter providing for recourse to arbitration.  Even if Indonesia chose to terminate additional BITs, the ASEAN Comprehensive Investment Agreement would still subject Indonesia to significant investment protection obligations for investors from ASEAN countries such as, for example, Singapore, Malaysia and Vietnam.