A Study On Dispute Settlement Mechanism In Myanmar’s Bilateral Investments Treaties

This dissertation focuses on the dispute settlement mechanism in Myanmar’s Bilateral Investment Treaties.A Bilateral Investment Treaty(BIT)is an international investment contract between states.When the foreign investors invest more and more in Myanmar,the dispute settlement mechanism is also more important.Moreover,Investment dispute settlement is concerned not only with the protection of foreign investors and investment but also with the development of investment sectors in the country.Therefore,it cannot be denied that the settlement of investment disputes becomes an essential role in the stability of the investment regime.If it cannot settle the investment disputes legally,systematically and reasonably,the foreign direct investment development will be failed.Most of the governments believe that the best ways to attract the foreign capital and to avoid the conflicts with foreign investors in international arbitration tribunals or in international litigations is to enter into Bilateral Investment Treaties(BITs)with the investor countries.The Bilateral Investment Treaties contains a potent powerful dispute settlement mechanism that allows investors to file a lawsuit directly against a host country allegedly violating investment protection under international law.It is known as Investor-State Dispute Settlement(ISDS).To avoid the bad effects of BITs in future,Myanmar should analyze its present BITs dispute settlement and explore whether the same clause should be retained or replaced with a new dispute settlement clause.This can reduce risks from future investment disputes,contribute to a dispute settlement clause that fit Myanmar’s current political and economic situation,and lead to mutual benefit for Myanmar and its foreign investor.Myanmar,as a developing country,is attempting to boost its economy by attracting foreign direct investment.Myanmar should prepare for future economic development when the political situation stabilizes,despite the fact that it is currently in an unpredictable political position.Recently,Myanmar has established three special economic zones in Thilawa,Kyaukphyu,and Dawei to attract a flow of FDIs.Myanmar has enacted a foreign investment Law on October 18,2016,but it is not comprehensive to persuade foreign investors to invest in Myanmar.A factor that binds and protects foreign investors is still needed.The Bilateral Investment Treaties(BITs)is one of the solutions for this issue.BITs include provisions for resolving disputes between a particular state and investors of the other state and between the state parties to the treaty.With regard to disputes between a host country and foreign investors,many BITs provide resources to agreed international dispute-settlement mechanisms.For example,in Myanmar-China BIT,this BIT provides that the dispute must be settled amicably through negotiation within six months.Failing that,an investor can initiate dispute settlement by a competent court of the contracting party,or either party can submit the dispute under an ad hoc arbitral tribunal.The ad hoc arbitral tribunal has broad authority to determine its procedures.So,China’s dispute resolution mechanism in BITs goes with international arbitration.China and Indonesia are ICSID member countries.Indonesia has revised its BITs which may be offered several lessons regarding ICSID Arbitration.India is not an ICSID member,but it has adopted a new model BIT with elaborate provisions on the dispute settlement that may also provide a valuable reference for Myanmar.There are different styles of dispute settlement clauses in BITs among China,India,Indonesia,and Myanmar.China has signed many BITs with developed countries and developing countries.China has many experiences regarding the investor-state dispute settlement resolution.So,Myanmar can learn from China’s experiences.On the other hand,Indonesia and India suffered because they lost their public exchequer under investor-state disputes settlement of their BITs.After the losses,Indonesia and India exited from their previous BITs.They initiated a new model BIT,to safeguard public welfare and balance their state and investor’s interests related to BIT.Although these two countries have different types of BITs,they followed a similar process to revise their BITs to new models.China and Indonesia are members of ICSID,but Myanmar and India are not.China,Indonesia,and India have many experiences relating the Investor-state dispute settlement cases.So,Myanmar can learn experience from foreign countries relating to the Investor-State dispute settlement mechanism.Moreover,Myanmar can review the International Investment Dispute arbitration mechanism in Myanmar’s BITs.Myanmar has signed so many BITs with China,Indonesia,and India.This study would like to analyze the dispute settlement mechanism in Bilateral Investment Treaties based on the comparative approach among China,Indonesia,and India.This dissertation explores the best way for Myanmar to improve the dispute settlement provisions and provide a guide on how to use the dispute settlement mechanism in BITs.