CONFÉRENCE DES NATIONS UNIES SUR LE COMMERCE ET LE DÉVELOPPEMENT UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT FINAL REPORT ADVANCED SEMINAR ON INTERNATIONAL INVESTMENT AGREEMENTS FOR INDONESIAN OFFICIALS: INTERACTIVE SESSION ON RECENT DEVELOPMENTS IN INTERNATIONAL INVESTMENT RULEMAKING 27-28 September 2007 Geneva, Switzerland Palais des Nations Room XXV Organized by the UNCTAD's Work Programme on International Investment Agreements Policies and Capacity-building Branch Division on Investment, Technology and Enterprise Development In coordination with BKPM - Indonesia Investment Coordinating Board 1
OUTCOME The advanced seminar on international investment agreements (IIAs) was organized at the request of the Government of Indonesia on 27 and 28 September 2007. It was organized by the UNCTAD's Work Programme on International Investment Agreements, Policies and Capacity-building Branch, Division on Investment, Technology and Enterprise Development, in coordination with the Indonesian Investment Coordinating Board (Badan Koordinasi Penanaman Modal, BKPM). This event is a follow-up to a number of activities already undertaken by UNCTAD for the Indonesian government in the area of international investment rulemaking: Workshop on the negotiation of IIAs organized by UNCTAD, BPKM and Ministry of Foreign Affairs on 20-23 June 2006. The workshop, attended by 50 participants, reviewed key substantive and procedural issues in IIAs, presented trends and best practices and discussed possible options for negotiations. The mission included consultations with the Indonesian negotiating team on the on-going negotiations of bilateral FTAs (Japan in particular) and in the context of the ASEAN + agreements (ANZ, India, China, Rep. of Korea). Advice on Indonesia-Japan FTA: UNCTAD provided substantive comments on the draft text of the investment chapter of the Indonesia-Japan FTA. Comments on the draft investment law: UNCTAD provided overall and article-specific comments on the new Indonesian investment law in form of a report. Presentation on international investment agreements in the training workshop on investment promotion for Indonesian diplomats, Geneva, 27-28 November 2006 Upon consultation of the Indonesian authorities, especially BKPM, and in light of the abovementioned activities already undertaken, the seminar was tailor-made to the needs of the Indonesian government. It took the form of an advanced seminar on IIAs and dealt with the recent developments in international investment rulemaking. Based on an interactive mode, it allowed for discussions and Q&A sessions. After an introductory presentation on the recent developments in international investment rulemaking, the programme dealt with key substantive issues in IIAs taking into account the recent treaty practice of Indonesia and other relevant countries and the impact of recent dispute settlement cases. During each presentation, examples were taken from the Indonesian IIAs (bilateral investment treaties and free-trade agreements with investment components already negotiated or under negotiation), as well as recent dispute settlement cases involving Indonesia. The resource persons were legal experts from the UNCTAD's secretariat and a private practionner who has extensive expertise in investor-state dispute settlement. The seminar was attended by 20 participants from BKPM, various ministries involved in investment negotiations and disputes, and the Indonesian mission in Geneva. The participants expressed their appreciation to the quality of the presentations and the resource persons. However, some participants had very little background knowledge on IIAs and difficulties in understanding English. A detailed programme of the seminar, the list of participants, the results of the evaluation questionnaire and the letter of appreciation of the Indonesian Ambassador in Geneva are attached. 2
PROGRAMME Thursday 27 October 2007 10:00 Opening remarks H.E. Gusmardi Bustami, Ambassador, Deputy Permanent Representative of Indonesia to the WTO James Zhan, Head, Policies and Capacity-building Branch, Division on Investment, Technology and Enterprise Development, UNCTAD 10:15 Introduction: The setting: recent trends and development in international investment rulemaking - The international framework on investment - Trends in international investment agreements - The Indonesian network of BITs and IIAs - Systemic issues and policy coherence Marie-Estelle Rey, Legal Expert, IAS, DITE 10:45 Presentation by Indonesia: recent and on-going IIA negotiations, issues of concerns 11:15 Key substantive issues and innovations relevant to the analysis and the negotiation of IIAs and the impact of recent dispute settlement cases, based on the Indonesian treaty practice: presentations and debates Investor-State dispute settlement: recent innovations in treaty practice and analysis of jurisprudence Mark Clodfelter, Of Counsel, Winston & Strawn, Washington 13:00 Lunch break 14:30 Scope and definitions Anna Joubin-Bret, Senior Legal Adviser, DITE 16:00 Coffee break 16:15 Admission and establishment of investment Anna Joubin-Bret, Senior Legal Adviser, DITE 18:00 End of working day 3
Friday 28 September 2007 10:00 Treatment of investment: national treatment and most-favoured-nation treatment 11:15 Coffee break 11:30 Protection of investments Thomas Westcott, Legal Expert, IAS, DITE 13:00 Lunch break 14:30 The "umbrella effect" of treaties and the link between contract claims and treaty claims 15:30 Further outstanding issues 17:00 End of the seminar Training material: UNCTAD publications: International Investment Agreements: Key Issues, Volumes I, II and III UNCTAD Series on International Investment Policies for Development Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking Investment provisions in Economic Integration Agreements Selected agreements (BITs signed by Indonesia, recent FTAs, model BITs) Investor-State dispute settlement cases (summaries of selected cases) 4
LIST OF PARTICIPANTS Name Position Institution 1 Mr. M. Sapta Murti Deputy of Ministry of State State Secretary Secretary 2 Mr. Djonifar Abdul Fatah Director of Taxes Regulation Department of Finances 3 Mr. Randi Anwar Director of Regional Cooperation Indonesia Investment Coordinating Board 4 Mrs. Ratih Nurdiati Head of Industry Section, Trade Cabinet Secretary and Effort Agency, Industry and Economy Office 5 Mr. Erwin Raza Head of Sub Division for Preparation of Policy Substances, Developing Export, Deputy Office for Coordinating Industry and Trade Section Coordinating Minister for the Economy 6 Mrs. Paramasinta Sitaresmi Deputy Director for Economic and Financial Cooperation with American Region, Deputy Office Coordinating Minister for the Economy of Economic Cooperation Coordination Section and International Financial 7 Mr. Otto Endy Panjaitan Deputy Director for State Incoming Taxes of Industry, Department of Finance Directorate General of Taxes 8 Mr. Fritz H. Silalahi Deputy Director for Bilateral Cooperation Indonesia Investment Coordinating Board 9 Mr. Riyanto Deputy Director for Evaluation of Cooperation Indonesia Investment Coordinating Board 10 Mrs. Sri Endang Purnawati Deputy Director for Cross- Sector, Bureau of Planning and Department of Finances Financial Office 11 Mr. Anastasius Riyanto Deputy Director for Foreign Aid Department of Industry 12 Mr. Mutiara Sibarani Junior Analyst, International relations, Directorate for Bank Indonesia International Affairs 13 Mrs. Ita Vianty Senior Analyst, International relations, Directorate for Bank Indonesia International Affairs 14 Mr. Sonny Agustinus Head of Section for monitoring and Consultation, State Department of Finance Enterprises, Directorate General of Taxes 15. Ms. Dinar Sinurat First Secretary Mission of Indonesia in Geneva 5
16. Boyke Nurdin First Secretary Mission of Indonesia in Geneva 17. Dra. Samsia Gustina M.si, Head of Planning, Secretariat Directorate General Ministry of Energy and 18. Yunus Saefulhak Head of Services of the Tax Ministry of Energy and 19. Eko Gunarto Diplo Mech. E.MT, Head of Monitoring Division Ministry of Energy and 20. Sunindyo Suryo Herdadi ST, Head of Section for Evaluation Ministry of Energy and 6