I.                            Indonesia’s Level of Development and Bilateral Investment Treaties (BITs)

The signing of Indonesia’s BITs is inseparable from its socio-economic context of the late 1960s. Since its independence in 1945 up until 1967, Indonesia was presided over by Soekarno and suffered from dramatical social, legal and political turmoil because of Dutch aggression and rebellions by domestic political powers.[1] This condition was exacerbated by policy measures taken by Soekarno, which cut off links with block power in the West.[2] Consequently, Indonesia became isolated from the world economy and barred from receiving foreign aid money. In 1967 Soekarno stepped down and was replaced by Soeharto,[3] who endeavoured to bring back stability and develop Indonesia’s economy that was suffering from  total shock, chaos and hyperinflation.[4] However, investors were reluctant to invest because of the absence of legal certainty and guarantee.[5] Concerned with the fact, the government ratified the ICSID Convention in 1968. Since then Indonesia has signing BITs with several countries.

The original BIT that was signed by Indonesia was the UK-Indonesia BIT in 1976, while the new one was signed with Finland in 2008.[6] Moreover, it also passed its first investment law in 1967, which primarily regulated the admission and operation of all foreign investment in Indonesia.[7] That illustration reveals that Indonesia did not have a good bargaining position when negotiating its current BITs.[8] It should be mentioned that UNCTAD classifies the evolution of the international investment agreement into four phases: The Era of Infancy (1950-1964), Era of Dichotomy (1965-1989), Era of Proliferation (1990-2007) and the Era of Re-orientation (2008-to date).[9] Most BITs signed during 1950-2007, known as ‘old BITs,’ were drafted by capital importing countries which subscribed to neoliberalism.[10] The duty of the Government under neoliberalism is only to ensure every individual conducts their business and to protect individual property without any interference in the market or business.[11]

Therefore, the old BIT did not accommodate the right of the host state to regulate, nor anything related to sustainable development.[12] Arguably, this background makes Indonesia’s current BITs is no longer suitable for its future development.[13] According to Jailani,Indonesia not only needs to attract investment but also to maintain sustainable development.[14] Sustainable development is an economic concept applied to exploit natural resources, while still preserving it for future generations.[15] From a regulatory-making perspective, it can be translated as ‘a reconciliation of legal norms related to different fields of environmental protection, social development and economic growth’,[16] and closely ties to the principle of sovereignty that acknowledges every State’s right to manage their natural resources according to its developmental policy.[17] The concept of integration and interdependence amongst various fields when making a regulation is therefore required to resolve the conflicts that may arise from a social, economic and human rights perspective.[18] Therefore, to execute sustainable development, the right to regulate and consideration of the host states development level should be acknowledged by the arbitral tribunal.[19] Klager argues the concept of the FET clause may threaten the promotion of sustainable development because in some circumstances it may limit the regulatory freedom of the host state.[20] As Dolzer observes that the interpretation of the tribunals to FET standard are determining the work of FET clause to the fact.[21]

The absence of a consistent method of review when assessing the level of development under legitimate expectation and the FET standard may harm the objective of Indonesia to accomplish sustainable development, seeing that it may suffer from a regulatory chill. As Spears argues, the regulatory chill may not only arise from the actual award rendered by the tribunal that imposes prohibitive damages for developing countries, but also from ‘the inconsistent legal conclusion and reasoning found in arbitral awards.[22] This condition may occur because the host state has some difficulty in predicting the consequence of its action when passing a new regulation that affects the investor’s business.[23] In 2002, Indonesia released a new Forest Law that contained a ban on open-pit mining.[24] This ban was exceedingly important to save Indonesia’s forests from deforestation and landslides, as hundreds of people had already been killed and vast tracts of forest destroyed.[25] Responding this law, a consortium of mining investors threatened to take Indonesia to investor-state arbitration under the Netherlands-Indonesia BIT, ASEAN-Indonesia BIT and UK-Indonesia BIT with the potential lawsuit reaching $22.7 million.[26] That amount was enormous for Indonesia because it was equal to half of the Government’s national budget in 2001.[27] Although the exact relationship between the mining companies’ threat and the cancellation of the law cannot be conclusively determined, the statement from the Ministry of Foreign Affairs in Indonesia at that time revealed that Indonesia had experienced a regulatory chill:[28]

‘there were investment activities before the Forestry Act was effective. If shut down, investors demand compensation and Indonesia cannot pay.’ [29]

Juwana suggested Indonesia withdrew from the ICSID Convention to avoid any lawsuit and the enormous compensation claims that were frequently granted to investors.[30]Moreover, he argues, even without Indonesia’s membership of the ICSID, investors will still wish to undertake business in Indonesia because the country is a lucrative market with an abundance of natural and human resources. Nevertheless, Juwana’s argument is contested for two reasons.[31] First, when an investor decides to invest in a country, they are not only searching the market for natural resources, they are also looking for a degree of protection.[32] Research conducted by Baek and Qian reveal that political and legal instability -both domestic and international discourage multinational companies from investing in developing countries.[33] From the context of Indonesia, legal uncertainty and decentralisation are the biggest problems that makes investors reluctant to invest in Indonesia.[34] Butt depicts this phenomenon as follows:

Put simply, there are too many laws on the books in Indonesia. Too many lawmakers have the power to produce too many types of laws. By itself, this huge mass of law adds great complexity to the system. Uncertainty then compounds this complexity in several ways. A few laws contradict others, although no reliable mechanism exists to settle inconsistencies. Statues are usually drafted broadly, with specifics left to be incorporated in executive regulations, some of which take years to issue, and can be difficult to obtain, if they are issued at all. Some laws are out of date, leading to confusion about how they should be applied, if at all, to modern circumstances. The courts are however reluctant to fill in any gaps, despite being authorised to do so. It can also be difficult to identify the law governing a specific situation and to keep track of whether certain laws have been amended or replaced. [35]

With this situation, investors will arguably be less interested in investing in Indonesia without any international protection represented by the existence of BIT and access to arbitration offered by ICSID.[36] Access to the ICSID arbitration is vital for the investor because, in theory, the enforcement of its award is relatively easy because of the existence of Article 55 of the ICSID Convention. Under Article 55, a State cannot avoid its liability on the grounds of State immunity.[37] This approach is entirely different to the commercial arbitration regime under the New York Convention that does not specifically offers such guarantees.[38] Second, Indonesia also must protect the interests of its investors who invest abroad.[39] Therefore, withdrawal from the ICSID is not an option. Arguably, what Indonesia needs to do is to modify its BITs to promote the right to regulate and sustainable development, as well as to protect investors.

II.           An Analysis to Current Indonesia Fair and Equitable Treatment (FET) Clause and Suggestion

Most of Indonesia’s FET clause regarding its BITs are the old type of BIT, signed between 1970-1998.[40] Therefore, it has relatively uniform clauses, although Indonesia initiated a dramatic law reform from 1997 to date. It can be viewed in the relatively slight difference between Indonesia’s FET clause in the Indonesia-UK BIT signed in 1967 (old BIT generation) and the Indonesia-Finland BIT signed in 2008 (new BIT generation).

Indonesia-UK BIT

Article 3

Promotion and Protection of Investments

2. ‘Investments of nationals or companies of either Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. […][41]

Meanwhile, with respect to the Indonesia-Finland BIT:

Article 2

                  Promotion and Protection of Investments

2. ‘Investments by investors of either Contracting Party shall, at all times, be subject to its law and regulations, and be accorded fair and equitable treatment and full protection and security’.[42]

Arguably the problems with Indonesia’s FET clauses are twofold. First, the FET standard was drafted vaguely and too broad, and second, it does not qualify the standard of review. This formulation indicates that the tribunal has broad discretion when assessing the normative obligation of the FET clause and the standard of review that may apply to the BIT.[43] As discussed in Chapter II; the FET standard may encompass the protection of the investors substantive legitimate expectation. Moreover, the tendency of the tribunal to associate substantive expectation as a duty to provide legal stability arguably contrasts with the socio-economic situation of Indonesia that still struggles with problems related to legal uncertainty[44] and decentralisation.[45] The disharmony of central and regional government suggests that Indonesia can easily be brought to arbitration.[46] When central government encourages investors to invest in Indonesia, provincial government may create a law or regulation that allegedly harms investors or vice versa.[47] Indeed, the problem of decentralisation should be resolved internally by Indonesia, and more importantly under International Law, as it is a fundamental principle that all States should be responsible for any action undertaken by its regional governments.[48] However, for its future BIT, it is possibly better to limit the operation of substantive expectation rather than gambling with the uncertainty of investment jurisprudence that does not adopt a specific method of review when assessing the level of development of the host state.

Moreover, the unqualified FET clause arguably threatens Indonesia because it enables the tribunal to freely employ the standard of review regarding the substantive expectation protection as discussed in Chapter II. Dolzer argues, in theory, and as a matter of interpretation, that the unqualified FET standard should refer to the basic meaning of ‘fair and equitable,’ which is ‘fair’, ‘even-handedness’ based on facts without any reference to a minimum or maximum standard in international law.[49] UNCTAD also supports this notion and said that the existence of the FET clause ‘does not automatically incorporate the international minimum standard for investors’.[50] However, this idea is far from reality. Although several tribunals have promoted unqualified FET as an autonomous standard, no published award has been decided purely on subjective grounds without giving any reference to standard in international law.[51]

The ideal standard of review related to regulatory-making disputes is a deference to the sovereignty of the host state, although not all tribunals adopt this measure. This reveals the unqualified FET clause will not stop tribunals from referring to any standard of treatment in international law. Marshall argues that the most suitable way to draft a FET clause for developing countries is to preserve the FET clause but refer to customary international law.[52] This measure will effectively ensure that tribunals decide a dispute solely based on what is subjectively fair and equitable.[53] However, with respect to Indonesia, this option is contested. The reference to customary international law from the context of investor-state arbitration is uncertain, and whether it freezes on the standard set by Neer case, or goes beyond it. Moreover, Indonesia is not a member of NAFTA which has a binding interpretation on the meaning of customary international law pertaining to the FET standard. Therefore, the FET clause with customary international law remains problematic for Indonesia. It is conceivable that the most appropriate way to reformulate Indonesia’s current FET clause is to dispense with the FET clause and focus on procedural protection.[54] This approach has been followed by various international investment treaties, such as the South Africa Model BIT,[55] India Model BIT and the CETA Agreement.[56] In South Africa’s model BITs, the comprehensive FET clause has been to ‘Fair Administrative Treatment’:

5.1 The State Parties shall ensure that their administrative, legislative, and judicial processes do not operate in a manner that is arbitrary or that denies administrative and procedural [justice] [due process] to investors of the other State Party or their investments [taking into consideration the level of development of the State Party].

5.2. Investors or their Investments, as required by the circumstances, shall be notified in a timely manner of administrative or judicial proceedings directly affecting the Investment(s), unless, due to exceptional circumstances, such notice is contrary to domestic law.

5.3. Administrative decision-making processes shall include the right of [administrative review] [appeal] of decisions, commensurate with the level of development and available resources at the disposal of State Parties.

5.4. The Investor or Investment shall have access to government-held information in a timely fashion and in accordance with domestic law, and subject to the limitations on access to information under the applicable domestic law.

5.5. State Parties will progressively strive to improve the transparency, efficiency, independence and accountability of their legislative, regulatory, administrative and judicial processes in accordance with their respective domestic laws and regulations.[57]

This model gives an extremely clear scope concerning the treatment that can be gained by the investor, and alters the operation of substantive expectation, although it still preserves the protection of procedural expectation by giving access to the administrative, legislative and judicial process. The reference to ‘arbitrary or denies administrative and procedural justice’ explains that the standard of review is high yet still preserves the natural right of the investor.[58] More importantly, it gives technical guidance to the tribunal by specifying the standard of review that it is intended to apply if a dispute arises, which is ‘domestic laws and regulations’.[59] This formulation will possibly be good for Indonesia, given that it will guide the tribunal to continuously consider the level of development as a standard of review. However, this draft may be hard to conclude because of the excessive emphasis on abiding by the domestic standard. An investor may raise a concern if the treatment of justice is only based on the development of the host state. As it is widely known, the treatment of justice is more challenging in developing in Indonesia because of the high rate of corrupt judges.[60] Therefore, the threshold regarding denial of justice should not be influenced by the host state’s level of development, as indicated in Para 5.1; rather, it should follow the standard of customary international law.[61] As the tribunal in Pantechiki v Albania argues, the treatment of denial of justice is not related to the ability of the host state to provide a lavish infrastructure nor computerised information bank; rather it just needs a ‘human factor of obedience related to the rule of law’.[62] Moreover, Roots precisely summarised the strong reason for placing denial of justice on the international law standard:

“We shall be told, perhaps, as we have already been told, that if the people of the country are liable to have heavy stones placed upon their breasts, and police officers to dance upon them; if they are liable to have their heads tied to their knees, and to be left for hours in that state; or to be swung like a pendulum, and to be bastinadoed as they swing, foreigners have no right to be better treated than the natives, and have no business to complain if the same things are practiced upon them. We may be told this, but that is not’[63]

Borchard supports this notion and argues, ‘bad faith’, fraud and outrage’ resulting in injury cannot be defended on the grounds that it is a custom of the country to which nationals must also submit.”[64] Regarding this, the FET clause on the India model BIT may possibly offer investors more confidence.

Article 3: Standard of Treatment

3.1 Each Party shall not subject Investments of Investors of the other Party to Measures which constitute:

(i)  Denial of justice under customary international law

(ii) Un-remedied and egregious violations of due process; or;

(iii) Manifestly abusive treatment involving continuous, unjustified and outrageous coercion or harassment. [65]

This sort of FET model will unquestionably give more space for Indonesia to exercise its regulatory-making approach because it eliminates the FET clause and focuses on procedural treatment. More importantly, this draft ensures that access to justice will be provided in accordance with the standard of customary international law and offers incentives to Indonesia to improve its standard of justice. Although debate is still ongoing in relation to what is customary international these days;[66] however, it is common logic in investment-state arbitration that the tribunal does not have the right to evaluate the domestic court’s decision.[67] As the tribunal in Loewen remarked, ‘an investor cannot bring arbitration proceedings for denial of justice in order to seek international review of national court decisions as though the tribunals were an appellate body.’[68] All things considered, it can be suggested that Indonesia’s future BIT should be drafted by eliminating the FET clause, and focusing on procedural treatment that refers to customary international law.

III.        The Role of Preamble: A Guide to Balancing Interpretation

The role of the preamble is inseparable from the operation of the FET standard and legitimate expectation. When assessing fairness and investor expectation, the tribunal will refer to the preamble of the BIT to establish the purpose of such an agreement. In the series of Argentina, the tribunal paid attention to the level of development of the host state that was in crisis. However, it was persuaded more by the preamble of the USA-Argentina BIT that stated that the country will provide a stable legal and regulatory framework for the investor. Therefore, if Indonesia wants its regulatory power and sustainable development are considered, then its future BIT should contain this matter. However, most of Indonesia’s current BITs do not possibly reflect such balance. In the Netherlands-Indonesia case for example, it reads:

 ‘….to create favourable conditions for investments by nationals of one Contracting Party on the basis of sovereign equality and mutual benefit; and. Recognizing that the Agreement on the promotion and protection of such investments will be conducive to the stimulation of investment activities in both countries[69]

The term ‘favourable conditions’ and the ‘promotion and protection of such investments’ are frequently interpreted as a duty of the host state to improve the investment climate and not to reduce any privileges the investor has been enjoying.[70] Moreover, although the preamble mentions that the basis of the favourable condition is related to sovereign quality’, the term ‘favourable’ inevitably places limits on the host state’s sovereignty not to exercise any conduct that may deny investment. The formulation of the preamble of the Netherlands-BIT is also followed in an additional Indonesia BIT, for instance, the UK-Indonesia BIT, Indonesia-Czech BIT[71] and so forth. If Indonesia uses this formulation for its BITs preamble, the tribunal will not have strong grounds to alter the current assumption that the purpose of BIT is to protect the investor.[72] Although some tribunals have agreed to take a balanced view on the purpose of the BIT in general,[73] it is however, more appropriate to write the purpose directly on the preamble. In the Indonesia-Finland BIT, the preamble encompasses sustainable development:

RECOGNISING the need to protect the investments of the investors of one Contracting Party in the territory of the other Contracting Party on a non-discriminatory basis;

DESIRING to promote greater economic cooperation between them, with respect to investments by investors of one Contracting Party in the territory of the other Contracting

Party;

[…]

AGREEING that a stable framework for investment will contribute to increasing the effective utilization of economic resources;

 RECOGNISING that economic and business ties can promote sustainable development;

[…] [74]

However, arguably the reference in relation to sustainable development in Finland-Indonesia BIT refers to the contribution of the business itself. It does not directly equip the host state to use sustainable development as a legality of self-defence. Moreover, the reference to a stable framework is constantly problematic in investor-state arbitration, as shown in the Argentina series case.[75] The model employed by India BIT attempts to surmount this matter by formulating its model BIT as follows:

Wanting to promote bilateral cooperation between the Parties with respect to foreign investments; and

Reaffirming the right of Parties to regulate Investments in their territory in accordance with their Law and policy objectives, including the right to change conditions applicable to such Investments; and

Seeking to align the Investment objectives with sustainable development and the inclusive growth of the Parties;[76]

The first paragraph of the preamble gives considerable space to changing regulation and reaffirming the sovereign right of the host state, which is arguably beneficial for Indonesia.Moreover, because of the reaffirmation in the second paragraph, it makes sustainable development a tool for the host state as the legality self-defence, seeing that it requires ‘alignment’ between the investment and the need of the host state to develop.[77] Put another way, the third paragraph arguably promotes a balanced view with reference to sustainable development. However, the absence of a clause to ‘protect the investment’ in the first paragraph may give an impression that the host state does not want to protect investment.[78] This formulation will unquestionably make the conclusion of the model BIT difficult to achieve. Regarding the reference to the South Africa Model BIT, it may possibly be beneficial for Indonesia. In its draft, the South African government emphasises that sustainable development and right to regulate, and states the significance of ‘seeking an overall balance of the rights and obligation of the State Parties, the investors and the investment under this Agreement’.[79] Overall, the preamble pertaining to Indonesia’s future BITs should include any clause related to the right of the Indonesian government to regulate the level of development and sustainability by considering the protection of investor interests.

[1] Indonesia Investments, ‘History of Indonesia: Politics and the Economy under Sukarno’ < https://www.indonesia-investments.com/culture/culture-columns/history-of-indonesia-politics-and-the-economy-under-sukarno/item5271 > accessed 01 August 2017

[2] Ibid

[3] Indonesia Investment, ‘Suharto’s New Order: Development under Authoriatrian Rule’ Indonesia-Investment < https://www.indonesia-investments.com/culture/politics/suharto-new-order/item180> accessed 01 August 2017

[4] Ibid

[5] Indonesia Investments (n 244)

[6] List of data at, United Nations Conference on Trade and Development (UNCTAD), ‘Indonesia- Bilateral Investment Treaty’ < http://investmentpolicyhub.unctad.org/IIA/CountryBits/127#iiaInnerMenu > accessed 01 August 2017

[7] Indonesia Foreign Investment Law No.1 of 1967 concerning Foreign Investment

[8] Indonesia Investments ( 244)

[9] United Nations Conference on Trade and Development (UNCTAD), ‘Reforming the International Investment Regime: An Action Menu’ (2015) 15 World Investment Report 120

[10]  Suzanne A Spears, ‘The Quest for Policy Space in A New Generation of International Investment Agreements’ (2010) 13 (4) Journal of International Economic Law 1037

[11]  Ibid

[12]  Ibid

[13] Statement of Mahendra Siregar, the Head of Indonesia Investment Coordinating Board (BKPM) to  Shawn (n 51)

[14] Jailani (n 25)

[15] Sustainable Development Commission, ‘What is Sustainable Development’ Sustainable Development Commission < http://www.sd-commission.org.uk/pages/what-is-sustainable-development.html> accessed 10 August 2017

[16] Roland Klager, Fair and Equitable Treatment and Sustainable Development’ in Marie-Claire Cordonier Segger, Markus W Gehring et al. Sustainable Development in World Investment Law (Vol 30, Kluwer Law International 2011) 248 citing  Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’, in International Law and Sustainable Development, ed. Alan Boyle & David Freestone (Oxford: Oxford University Press, 1999), 31; Marie-Claire Cordonier Segger & Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (Oxford: Oxford University Press 2004), 46–47.

[17] Simon Butt, ‘Foreign Investment Law in Indonesia, The Problem of Legal Uncertainy’ in Vivienne Bath and Luke Nottage (ed) Foreign Investment and Dispute Resolution Law and Practice in Asia (Rouledge Research in International Economic Law 2011

[18] Klager (n 209) at , Fair and Equitable Treatment and Sustainable Development’ in Marie-Claire Cordonier Segger, Markus W Gehring et al. Sustainable Development in World Investment Law (Vol 30, Kluwer Law International 2011)

[19] Jailani

[20] Roland Klager, Fair and Equitable Treatment and Sustainable Development’ in Marie-Claire Cordonier Segger, Markus W Gehring et al. Sustainable Development in World Investment Law (Vol 30, Kluwer Law International 2011) 248

[21]  Rudolf Dolzer, ‘The Impact of International Investment Treaties on Domestic Administrative Law’, NYU J. Int’l L. & Pol. 37 (2005): 954.

[22] Suzanne A Spears, ‘The Quest for Policy Space in A New Generation of International Investment Agreements’ (2010) 13 (4) Journal of International Economic Law 1037

[23] Butt (n 40)

[24] Butt (n 40)

[25] Butt (n 40)

[26] Hamby Chris, ‘The Court That Rules the World’  28 August 2016 BuzzFeedNews < https://www.buzzfeed.com/chrishamby/supercourt?utm_term=.rhrKKEwol&ref=mobile_share#.rflVVK8lL> accessed 01 July 2017

[27] Butt (n 40)

[28] Butt (n 40)

[29] Koran Tempo, ‘Nabiel Makarim Agrees with Mining in Protected Forests’ (14 June 2002) TEMPO, translated by Jatam Update on Indonesia Government Positions on Mining in Protected Areas July 2002, JATAM email newsletter received by the author July 15, 2002 (based on the report by Aminuddin, a JATAM member who attended the meeing)

[30] Hikmahanto Juwana, ‘Indonesia Should Withdraw From the ICSID’ (2 April 2014) The Jakarta Post < http://www.thejakartapost.com/news/2014/04/02/indonesia-should-withdraw-icsid.html> accessed 27 June 2017

[31] Ibid

[32] Shawn (n 51)

[33] Baek and  Qian (n 209 )

[34] Butt (n 40)

[35] Butt (n 40)

[36] Shawn Donnan, ‘Indonesia to Terminate More Than 60 Bilateral Investment Treaties’ (26 March 2014) Financial Times 1

[37] ICSID Convention article 55

[38] New York Convention on the Enforcement and Recognition of Foreign Arbitral Awards 1958. See also Leon Chung, ‘Recent Trends in State Immunity’ (25 April 2013)  Kluwer Arbitration Blog 1

[39] Michael Ewing-Chow and  Junianto James Losari Singapore, ‘Indonesia Should Not Withdraw from the ICSID’ (24 April 2014) The Jakarta Post <http://www.thejakartapost.com/news/2014/04/24/indonesia-should-not-withdraw-icsid.html> accessed 26 June 2017

[40] List of Indonesia BIT at Investment Policy Hub  http://investmentpolicyhub.unctad.org/IIA/CountryBits/97#iiaInnerMenu accessed July 2017

[41]  Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Indonesia for the Promotion and Protection of Investments 1977 (hereinafter referred as Indonesia-UK BIT) Article 3

[42] Agreement between the Government of the Republic of Finland and the Government of the Republic of Indonesia on the Promotion and the Protection of Investments 2008 (hereinafter referred as Indonesia-Finland BIT) Article 2

[43] Haeri (n 151)

[44] Butt at 118

[45] Juwana

[46] Ibid

[47] Ibid

[48]  Ewing-Chow and Singapore Junianto James Losari (n 284)

[49] Haeri (n 151)

[50] United Nations Conference on Trade and Development (UNCTAD), “Fair and Equitable Treatment,” (1999)  3 UNCTAD/ITE/IIT/11 1

[51] Marshall Fiona, ‘Fair and Equitable Treatment in International Investment Agreement’ [2007] Issues in International Investment Law: Background Papers for the Developing Countries Investments Negotiators Forum Interantional Institute for Sustainable Development 1

[52] Ibid

[53] Ibid

[54] Southern African Development Community (SADC), ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (July 2002)

[55] India Government, ‘Model Text for the Indian Bilateral Investment Treaty’ < https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf> accessed 29 July 2017

[56]  The EU-Canada Comprehensive Economic and Trade Agreement

[57] Southern African Development Community (SADC), ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (July 2002)

[58] Ibid

[59] Ibid

[60] Jegho Leo, ‘ Indonesian Courts in ‘Emergency Situation’ President Urged to Deal with Corrupt Judges’ (30 May 2016) Global Indonesian Voices < ww.globalindonesianvoices.com/26381/indonesian-courts-in-emergency-situation-president-urged-to-deal-with-corrupt-judges/> accessed 30 July 2017

[61] Pantechniki S.A. Contractors & Engineers v. Republic of Albania, ICSID Case No. ARB/07/21, Award, 30 July 2009 para 76

[62] Pantechniki S.A. Contractors & Engineers v. Republic of Albania, ICSID Case No. ARB/07/21, Award, 30 July 2009 para 76

[63] Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” 4(3) The American Journal of International Law (1910) 517.

[64] Edwin Borchard, “The ‘minimum standard’ of the treatment of aliens,” 38(4) Michigan Law Review (1940) 445

[65] Loewen v. USA Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Award, 26 June 2003 para

[66] Baker Roozbeh (Rudy) B, ‘Customary International Law in the 21^st Century: Old Challenges and New Debates’ (2010) 21 The European Journal of International Law 173

[67] Mchlachan, Shore and Weineger  (n ) at 304-307; see also  Loewen v USA para 238; Robert Azinian, Kenneth Davitian, & Ellen Baca v. The United Mexican States,ICSID Case No. ARB (AF)/97/2), Award, 1 Novermber 199, para 99

[68] Loewen v. United States, para 132; cited in Waste Management No. 2 v. Mexico, para 97 and Methanex v. United States, Part IV Chapter C para 11.

[69] Agreement between the Government of the Kingdom of the Netherlands and the Governments of the Republic Indonesia on Promotion and Protection of Investment 1994 (hereinafter referred as Indonesia-Netherland BIT). This BIT is no longer available because the Indonesian Government terminated it on 2014.

[70] Dolzer Rudolf and Schreuer Christopher, Principle of International Investment Law (2nd edn, OUP 2012) at [..}

[71] Agreement between the Government of Czech Republic and the Government of the Republic of Indonesia for the Promotion and Protection of Investments 1998

[72] Marshall (n 299)

[73]  Saluka Investments BV (The Netherlands) v Czech Republic, UNCITRAL, Partial Award, 17 March 2006;  Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3), Award, 22 May 2007

[74] Indonesia-Finland BIT, preamble

[75] CMS v Argentina, Sempra v Argentina, Sempra v Argentina

[76] India Model BIT, preamble

[77] India Model BIT, preamble

[78] Ashutos Ray, ‘Unveiled: Indian Model BIT’ (18 January 2016) Kluwer Arbitration Blog

[79]  Southern African Development Community (SADC), ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (July 2002), preamble