1987 Agreement Among the Governments of Brunei Darussalam, 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

ASEAN IGA / ASEAN Agreement for the Promotion and Protection of Investments

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Article IX ‘Dispute between the Contracting Parties’:

“1. Any dispute between and among, the Contracting Parties concerning the interpretation or application of this Agreement shall, as far as possible, be settled amicably between the parties to the dispute. Such settlement shall be reported to the ASEAN Economic Ministers (AEM).

2. If such a dispute cannot thus be settled it shall be submitted to the AEM for resolution.”

Pursuant to Articles 4 and 5 of the 1996 IGA Protocol Article IX was amended as follows:

“Dispute Between the Contracting Parties

The provisions of the ASEAN Dispute Settlement Mechanism shall apply to the settlement of disputes under the agreement.”

Article X ‘Arbitration’:

“1. Any legal dispute arising directly out of an investment between any Contracting Party and a national or company of any of the other Contracting Parties shall, as far as possible, be settled amicably between the parties to the dispute.

2. If such a dispute cannot thus be settled within six months of its being raised, then either party can elect to submit the dispute for conciliation or arbitration and such election shall be binding on the other party. The dispute may be brought before the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), the Regional Centre for Arbitration at Kuala Lumpur or any other regional centre for arbitration in ASEAN, whichever body the parties to the dispute mutually agree to appoint for the purposes of Conducting the arbitration.

3. In the event that the parties cannot agree within a period of three months on a suitable body for arbitration, an arbitral tribunal consisting of three members shall be formed. The Parties to the dispute shall appoint one member each, and these two members shall then select a national of a third Contracting Party to be the chairman of the tribunal, subject to the approval of the parties to the dispute. The appointment of the members and the chairman shall be made within two months and three months respectively, from the date a decision to form such an arbitral tribunal is made.

4. If the arbitral tribunal is not formed in the periods specified in paragraph 3 above, then either party to the dispute may, in the absence of any other relevant arrangement request the President of the International Court of Justice to make the required appointments. 5. The arbitral tribunal shall reach its decisions by a majority of votes and its decisions shall be binding. The Parties involved in the dispute shall bear the cost of their respective members to the arbitral tribunal and share equally the cost of the chairman and other relevant costs. In all other respects, the arbitral tribunal shall determine its own procedures.”

Pursuant to Article 5 of the 1996 IGA Protocol, Article X was renamed as follows:

‘Dispute Between Contracting Parties and Investors of Other Contracting Parties’

Article XI ‘Consultation’:

“The Contracting Parties agree to consult each other at the request of any Party on any matter relating to investments covered by this Agreement, or otherwise affecting the implementation of this Agreement.”

This Agreement was one of the ‘Covered Agreements’ pursuant to Article 1.1 of the 1996 Protocol on Dispute Settlement Mechanism read together with its Appendix 1. It was also one of the ‘Covered Agreements’ pursuant to Article 1.1 of the 2004 ASEAN Protocol on Enhanced Dispute Settlement Mechanism read together with its Appendix I. The 2004 Protocol will only apply with respect to disputes that arose after its entry into force (29 November 2004).

Secretary-General of ASEAN

ASEAN Secretariat Table of ASEAN Treaties/Agreements and Ratification (as of October 2012), and analysis by CIL

02/08/1988

24/02/2012

Article XIII ‘Entry into Force’:

“1. This Agreement shall enter into force on the 30th day after the deposit of the sixth Instrument of Ratification and shall thereafter remain in force for a period of the years.”

Article XIII ‘Entry into Force’:

“2. This Agreement shall thereafter continue in force unless terminated by any Contracting Party giving not less than six months written notice through diplomatic channels. Provided however, that in respect of investments made while the Agreement was in force, its provisions shall continue in effect with respect to such investments for a period of ten years after the date of termination, and without prejudice to the application thereafter of the rules of international law.”

1996 Protocol to Amend the 1987 Agreement Among the Governments of Brunei Darussalam, Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore and the Kingdom of Thailand for the Protection and Promotion of Investments

This agreement was terminated upon the entry into force of the 2009 ASEAN Comprehensive Investment Agreement.

1998 Framework Agreement on the ASEAN Investment Area

2001 Protocol to Amend the Framework Agreement on the ASEAN Investment Area

2014 Protocol to Amend the ASEAN Comprehensive Investment Agreement

2017 Second Protocol to Amend the ASEAN Comprehensive Investment Agreement

2017 Third Protocol to Amend the ASEAN Comprehensive Investment Agreement

2020 Fourth Protocol to Amend the ASEAN Comprehensive Investment Agreement

2021 ASEAN Investment Facilitation Framework

ASEAN Secretariat accessed on 29/08/2022

This Agreement was signed by the Economic Ministers of Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore and Thailand.

Cambodia acceded to this Agreement pursuant to the 1999 Protocol for the Accession of the Kingdom of Cambodia to ASEAN Agreements.

Lao PDR acceded to this Agreement pursuant to the 1997 Protocol for the Accession of the Lao People’s Democratic Republic of ASEAN Agreements.

Myanmar acceded to this Agreement pursuant to the 1997 Protocol for the Accession of the Union of Myanmar to ASEAN Agreements.

CIL has found no record of Vietnam’s accession to this instrument.  However, it may be considered that Vietnam indicated its accession to this agreement through the 1995 Declaration of the Admission of the Socialist Republic of Viet Nam into the Association of Southeast Asian Nations read together with the 1996 Protocol to Amend the ASEAN Agreement Among the Government 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.

The title of this agreement was revised by Article 1 of its 1996 Protocol:

“The title of this Agreement shall be amended to read as “The ASEAN Agreement for the Promotion and Protection of Investments.”

Note Article 12.1 of the 1998 Framework Agreement on the ASEAN Investment Area, ‘Other Agreements’:

“Member States affirm their existing rights and obligations under the 1987 ASEAN Agreement for the Promotion and Protection of Investments and its 1996 Protocol. In the event that this Agreement provides for better or enhanced provisions over the said Agreement and its Protocol, then such provisions of this Agreement shall prevail.”

Ratification information for this instrument is not available on the current ASEAN Secretariat Legal Instruments website. Details above are taken from the last published information on this instrument.