Classifieds 50% off, use promo code FBkpkPromo The Phuket News Kata Rocks The Phuket News Outrigger Koh Samui Beach Resort
The Phuket News Business News
The Phuket News Phuket | Thailand | World | Business | Q&A | Weird World XML, RSS, Feed
The Phuket News The Phuket News
The Phuket News

Reaping just rewards: How to file arbitration claims under the Asean Agreement

Following our first two articles in this “Arbitration in Asean” series, which explains how to engage in arbitration under the new model for arbitration under the Asean Agreement, this third and final article focuses on what awards may be sought – and granted – under the agreement.

economics,


Jerrold Kippen

Saturday 29 April 2017, 10:00AM


While positive outcomes of projects may soar above the skyline, the Asean Agreement notably explicitly prohibits any award of punitive damages. Photo: Till Krech
While positive outcomes of projects may soar above the skyline, the Asean Agreement notably explicitly prohibits any award of punitive damages. Photo: Till Krech

Awards

Any arbitration under the Asean Agreement may only award:

(a) monetary damages and any applicable interest; or

(b) restitution of property, in which case the award must provide that the investment State may pay monetary damages and any applicable interest in lieu of restitution; and

(c) costs and attorney’s fees in accordance with the Asean Agreement and the applicable arbitration rules.

Notably, the Asean Agreement explicitly prohibits any award of punitive damages. 
The Asean Agreement also prohibits an investor from enforcing an award issued under the ICSID Convention until either:

(a) 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment of the award; or

(b) revision or annulment proceedings have been completed.

In the case of a final award under the ICSID Additional Facility Rules, the UNCITRAL Arbitration Rules, or other arbitration rules selected by the parties, an investor may not enforce the award until:

(a) 90 days have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside, or annul the award; or

MY STORAGE - Secure, Clean and Cost Effective Self Storage at Jungceylon, Phuket, Thailand

(b) a court has dismissed or allowed an application to revise, set aside, or annul the award and there is no further appeal.

Provisions such as:

(1) essentially limiting damages awardable to an investor to sums of money and excluding punitive damages; and

(2) prohibiting an investor from immediately enforcing an award,

were also unheard of in the old investment model agreements (including the ones that Thailand is a party to mentioned above) and are also intended to give due consideration to the investment State’s interests.

Finally, the Asean Agreement also defines any claim that is submitted to arbitration under the Asean Agreement to be a “commercial” relationship or transaction for purposes of Article 1 of the New York Convention.

This is important because some countries enforce arbitration agreements under the New York Convention only if they are “commercial” in nature. These countries have in the past presumed that awards issued pursuant to investment treaties did not arise from a commercial relationship and are, therefore, not commercial in nature. Thus, the Asean Agreement provides for the broadest possible enforcement breadth under the Convention.

 

This is the third and final part of the “Arbitration in Asean” series. See also “Phuket Law: Arbitration in Asean – Legal rights in agreements enforced” (click here) and “Phuket Law: Settling the score – How to file arbitration claims under the Asean Agreement” (click here).


DUENSING KIPPEN is an international law firm specialising in business transaction and dispute resolution matters, with offices in Bangkok and Phuket, Thailand and affiliated offices in 45 other countries. Visit them at: duensingkippen.comns are intended to provide a more equitable consideration of the investment State’s interests. 

 

 

The Phuket News
The Phuket News
Comment on this story
* Please login to comment. If you do not have an account please register below by simply entering a username, password and email address. You can still leave your comment below at the same time.
Comments Here:
Username:
Password:
E-mail:
Security:
    Forget your password?

Be the first to comment.

The Phuket News
The Phuket News The Phuket News The Phuket News
The Phuket News
Share this
The Phuket News
Have a news tip-off? Click here
The Phuket News
Related stories
The Phuket News
Phuket community

Recent Comments


August 3 set as final deadline for Patong taxis to return parking spaces to public

Jor12, I must say, I am impressed, now you say you know the mindset of all these "penniless" backpackers, as well as their level of "in...(Read More)


Stranded sea turtles give Phuket lifeguards an extra job in monsoon season

Really sad state of affairs with marine management. When is the Marine Office going to get off their ass and go have a chat with these ignorant fishi...(Read More)


Canadian expat Muay Thai fighter found dead of suspected hanging in Patong

OzGeoff ... Given the time of the article (Monday 24 July 2017, 05:29PM) and the publishing of the comment (25 July 2017 - 13:08:00) it is safe to say...(Read More)


August 3 set as final deadline for Patong taxis to return parking spaces to public

Paully44...I have comprehended well and replied cogently to your incorrect statements. I am not really concerned about your opinions of me as they are...(Read More)



Canadian expat Muay Thai fighter found dead of suspected hanging in Patong

"* The Phuket News is withholding the man’s identity until it has been confirmed that his next of kin have been notified." Then why pub...(Read More)


August 3 set as final deadline for Patong taxis to return parking spaces to public

Jor 12; for such a "wordly" figure such as yourself how is it you cannot comprehend a simple comment / point of view in direct contrast to y...(Read More)


4.2mn meth tabs, 26kg crystal meth, 40kg ketamine seized

Excellent, if only the traffic police were as good!...(Read More)


Canadian expat Muay Thai fighter found dead of suspected hanging in Patong

Matthew Richardson was a gentleman Canadian who lived and breathed Muaythai, who chose to live and train in a foreign land whose culture and people he...(Read More)


August 3 set as final deadline for Patong taxis to return parking spaces to public

BenPendejo...it's is precisely the point given that you say, "...me shining yet another light on the fact that the BIBs are corrupt to the ...(Read More)

The Phuket News
Bangkok Hospital Phuket
PHUKET NEWS
Phuket
Thailand
World
Business
Q A
Weird World
ARCHIVE
POLL
CURRENCY
WEATHER
PHUKET TIDE TABLE
The Phuket News PHUKET LIFE
Phuket Arts
Phuket Community
Phuket Culture
Phuket Dining
Phuket Education
Phuket Entertainment
Phuket Environment
Phuket Health
Phuket People
Phuket Technology
Phuket Travel
Photo Galleries
COLOURING BOOK
The Phuket News PHUKET SPORT
Phuket
Thailand
World
SURF REPORT
PREDICTIONS
The Phuket News PHUKET CLASSIFIEDS
Phuket Buy and Sell
Phuket Jobs
Phuket Property
Phuket Cars and Boats
Phuket Community
Phuket Services
SEARCH CLASSIFIEDS
POST CLASSIFIED
The Phuket News The Phuket News PHUKET EVENTS
Phuket Event listings
Phuket Event calendar
Buy Tickets
POST EVENT
The Phuket News PHUKET DIRECTORY
Phuket Bars, pubs and clubs
Phuket Hotels and villas
Phuket Restaurants
Phuket Yellow Pages
POST LISTING
The Phuket News BARGAINS
The Phuket News ABOUT US
The Company
Distribution points
Subscribe
Advertise with us
Pay for advert
Contact us
CONTESTS
Content Google Map
Site map
Australian Visa Services
 
Currency - The Phuket News   Weather Report - The Phuket News   Surf Report - The Phuket News
LinkedIn - The Phuket News   Twitter - The Phuket News   YouTube - The Phuket News   Facebook - The Phuket News
Copyright © 2017 Class Act Media. All rights reserved. | Website usage terms and conditions | Privacy and Confidentiality Statement.