Thailand's Leading International Legal Expert Shares Perspectives on the International Law Commission and International Investment Law

BANGKOK,Sept. 21,2021 -- Dr. Vilawan Mangklatanakul has been nominated as Thailand's first woman and only woman candidate from Asia Pacific for the International Law Commission for the term 2023–2027.

Dr. Vilawan recently shared her perspectives on the International Law Commission and Investment Law.

As countries get back on their feet from COVID-19,trade and investment will be two important economic engines to boost growth and employment,says Dr. Vilawan Mangklatanakul,Director-General of the Department of Treaties and Legal Affairs of the Ministry of Foreign Affairs of Thailand.

Dr. Mangklatanakul notes that currently,there is a lack of coherence in the interpretation of the fair and equitable treatment (FET) standard as well as other principles used in investment treaties such as full protection and security or the right to regulate,all of which are public international law principles. The reason for such incoherence is that the interpretation has been left solely in the hands of arbitral tribunals for years. Given the ad hoc nature of the tribunals and varying levels of experience of arbitrators in public international law,it comes as no surprise that there exists a lack of uniformity of decisions and no systematic approach to the interpretation of the same protection standards.

Dr. Mangklatanakul is well aware of the fact that the issue of investment protection has been taken up by many other forums today. For instance,UNCTAD has produced policy options regarding the reform of the international investment regime.

Sheisalso familiar with the work of UNCITRAL on the reform of Investor-State Dispute Settlement (ISDS). However,due to limitations of its mandate,the focus of its work has been on the procedural aspects of dispute settlement such as a code of conduct for adjudicators and joint interpretation mechanism between treaty parties as well as setting up standing investment courts,stand-alone review or appellate mechanisms.

It is understood that many countries are quite familiar with ISDS – either as a treaty party to an investment agreement or as a respondent to an ISDS case or a combination of both. Currently,there are more than 2,500 international investment agreements in force. There has been at least 1,104 treaty-based ISDS cases with more than 120 countries being respondents.

Dr. Mangklatanakulsheds light to the idea that the international community as a whole will benefit from clarity in the interpretation of public international law principles used in international investment agreements,given the importance of economic activities.

To some extent,this problem of divergent interpretation has been recognised by the International Law Commission (ILC). In 2008,the ILC revisited the topic of Most-Favoured Nation (MFN) and in 2015 the ILC Study Group produced a report that provides a very useful guidance on the proper application of the rules of treaty interpretation for MFN provisions.

FET,which has been in the ILC long-term work programmed since 2011,is perhaps even more important than MFN given the greater frequency for which claims are brought under it. A number of States have taken a proactive approach to address the problem by drafting new international investment agreements to give greater clarity on what is and is not covered by the standard. However,this approach still has significant limitations. First,most ISDS cases are being brought under the old generation treaties; renegotiation of thousands of investment treaties is simply impractical. Second,new languages can also bring with them new interpretative problems.

Given the increasingly important role of investment for post-COVID recovery and foreseeable risks that come with it,Dr.Mangklatanakulstrongly encourages the ILC to step in and bring clarity to the interpretation and application of FET clauses. The ILC could reach out to Member States to survey State practice,the requisite opinio juris of States and,as subsidiary sources,the decisions of international courts and tribunals as well as the writings of highly qualified scholars. Interactions of governments in the ILC's codification process can also contribute to the crystallisation of elements of the FET standard.

Dr. Mangklatanakul stresses that "Weare at a critical juncture and need to be forward-looking. Consideringfactors mentioned,the ILC could be the only body to help safeguard against fragmentation of international investment law. The outcome of such work by the ILC would be of practical use to those involved both in respect of the drafting of investment treaties and in the interpretation and application of FET clauses in tribunal decisions. Clarity and certainty will also be beneficial to private investors,securing job stability and opening opportunities for those seeking jobs in various investment sectors. The outcome of the work of the ILC will go a long way for society and the international community as a whole."