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“Treaty disputes” was the topic of discussion in the first session, moderated by Pengiran Izad-Ryan b PLKDR Pengiran Haji Bahrin, President of the Law Society of Brunei Darussalam. The session, which featured panellists from Malaysia, Thailand and the People’s Republic of China, started with a talk by Datuk Azailiza bt Mohd Ahad, Head of International Affairs Division, Attorney General’s Chambers, during which she addressed some issues pertaining to treaty dispute resolution, from the Malaysian Government’s perspective.  She defined a treaty as a written document, governed by international law, between governments of sovereign states.  According to her, dispute resolution had previously been confined to state matters alone, and had not been applied to financial matters.  However, this situation had changed, whereby current practice saw dispute resolution being directed to matters involving goods, services and investment, which affect people, government and co-operative relations.  She explained that in order to promote an investor’s right to make reference to any international body, the government faced a few challenges, such as the need for the state to protect the interests of the country and its citizens, and the need to be ready for investors to come in.

Cecil Abraham, a partner at Messrs Zul Rafique & Partners, continued the session by addressing the delegates on ASEAN and China’s position where arbitration of investment disputes was concerned.  At the international level, there was increased need for investment dispute resolution – though restricted by the requirement for investors to have the state’s approval for investment – but with few competent practitioners.  As such, Cecil Abraham called on the delegates to move towards improving expertise in this area.  He specified some important pointers for investors to note, in particular: awareness of bilateral and multilateral treaties; familiarity with domestic laws; and, last but not least, the need to acquire state approval for investment.

Little has been discussed internationally as to the protection of investors.  In view of that, Dr Vilawan Mangklatanakul of the Department of Treaties and Legal Affairs, Ministry of Foreign Affairs (Thailand), spoke extensively on the rights of investors to bring claims against governments.  She enumerated six benefits promoted under the CAFTA Investment Agreement, namely:

In venturing into dispute settlement, China had categorised treaty dispute settlement into three groups: negotiation and consultation; negotiation, consultation and arbitration; and negotiation, consultation, arbitration and other means involving a third party, such as mediation, adjudication and conciliation.  In discussing these, Ma Xinmin, Counselor of Department of Treaty and Law, Ministry of Foreign Affairs (People’s Republic of China) stated that China’s practice had always emphasised negotiation and consultation.  In promoting mutual understanding with other countries, China had applied its own recipe for treaty dispute settlement, namely:

Ma Xinmin concluded that, China played a great role in promoting international peace, as it prioritised negotiation and consultation, and practised arbitration as a supplementary method, and mediation and conciliation as subsidiary methods, in dispute resolution. 

In answering a question by a delegate from Indonesia on whether there was any future possibility for adaptation of the World Trade Organisation’s dispute settlement process in the ASEAN region, Dr Vilawan Mangklatanakul stated that the essence of that process had already been adopted, and incorporated in the China-ASEAN Trade Area with some amendments to suit the needs of the member countries.

The moderator concluded the session by wishing the delegates good luck and thanking the organisers for giving him and the panellists the opportunity to deliver their viewpoints.  Lim Chee Wee, President of Malaysian Bar, then took to the stage to present tokens of appreciation.